Jury selection is possibly the most important and underrated component of a personal injury jury trial. Analyzing what motivates jurors to side with an injured victim is essential to obtaining a verdict. The goals in jury selection are to choose jurors who will be receptive to your client’s liability and damage claims and, when possible, exclude jurors who have pre-set opinions biased against your clients.
It is unquestionable that the attitudes toward the civil justice system citizens bring into the venire panel remain the most critical factor for jury selection. Potential jurors come into the courtroom with preconceived opinions affecting the way they will view the case. These opinions have been formed as a result of their life experiences. Attitudes that stem from life experiences will probably not change despite excellent legal arguments. Accordingly, counsel’s primary goal in jury selection should be to properly screen the panel to determine which potential jurors are prejudiced against your case or your client. Your second goal should be to educate the potential jury on the issues in the case.
Presently, the venue of a trial often determines whether or not counsel is given a significant opportunity to address the venire panel. Many courts in the past few years have steered away from giving counsel any significant time to talk to the panel. Instead, judges or their administrative aides essentially pose questions that are often stripped of any insightful inquiries. This restrictive approach has been driven by some undefined fear that allowing attorneys to speak with and question the jury panel will taint them.
In reaching this conclusion, the jury selection process has gone awry. Because the case in which the panel is presented for selection is the only case your clients may ever have in a courtroom, the importance of allowing counsel time to visit with the panel is substantively important. Without this dynamic, it becomes very difficult to accomplish the purpose of voir dire questions — e.g., to learn “that which is true” of the venire panel.
When the voir dire process allows lawyers to question the panel, counsel must employ the most efficient and effective questioning to find both the coal and the diamonds. Effective voir dire requires that counsel recognize all the elephants in the room and have conversations with the venire panel about all pertinent issues. Knowing how to identify biases and pretrial attitudes that are both helpful and harmful assumes counsel knows which jurors will favor his or her case. Here are some basic principles essential to assist all attorneys in selecting jurors who will, in these tough economic times, bring specific biases to their jury duty.
In educating the jury, incorporate your case theme into your voir dire at the first logical opportunity. Define the main issues that jurors will have to resolve during the trial. Explain the weaknesses in your case to the jury. This will prove to the jury that you are being completely honest. If possible, another goal of jury selection should be to establish rapport with the jury. Ask open-ended questions. Voir dire questions that get the panel to follow along nodding their heads and agreeing to be fair are useless. Instead, jury selection requires an open forum for discussion about the issues. Use the selection process to probe the jury’s feelings regarding those issues. Encourage the jury to speak openly about their feelings. Do not be afraid that a potential juror will contaminate the panel by answering your questions in a negative way. You want to hear how each juror really feels — before that juror is actually empaneled.
In order to identify these jurors, a series of generally pro-business responses to several questions should be anticipated and used. Assuming that in 2012, pro-business jurors should be viewed as economically conservative, here are some rather direct inquires to identify these folks.
• What are your views of companies that sloppily account for product quality during the manufacturing process?
• What do you think of company executives who exercise business practices to run their companies without consideration of the views of their employees?
• Should companies use suggestion boxes to improve upon the work environment?
The process of identifying the conservative or defense-leaning individuals who can be persuaded to find negligence and give money is complicated by the problem that social researchers have done numerous studies showing self-identification is frequently in error. A prime topic, helpful in identifying jurors with a pro-business bias, will involve questions about business ethics. Conservative folks tend to show a strong interest in values and ethics. Consequently, the following questions will help in the identification process.
• What do you think of business enterprises that lose testing data?
• What do you think about a company that is casual about quality control?
• Can a company ignore small errors in the assembly process?
The negative attitudes toward lawsuits, plaintiffs and plaintiffs attorneys have become very generalized. People in all spectrums of our economy seem convinced that people are too ready to sue. Not only do prospective jurors feel people are too ready to sue, they also feel the reason for this is that people take too little responsibility for their own actions these days. The jury pool is also filled with individuals who believe lawsuits take money out of their own pockets. This attitude leads individuals to be very suspicious of anyone who files a lawsuit. This is a notable concern that counsel should take advantage of during the voir dire process. Asking questions and developing a dialogue with panel members aimed at turning this bias in favor of the plaintiffs is doable with the message that it is the defendant’s behavior in producing the injury-producing circumstances that is the reason for the legal action, which in turn has taken jurors away from their families.
A key part of what must be done is to identify those individuals whose attitudes about tort reform are so extreme as to be unreachable and find new ways to reach those who have some of these attitudes, but whose attitudes haven’t become so polarized that they are unwilling to listen to the plaintiff’s perspective. A thematic approach to tort reformers during the questioning process is to use the accountability argument to draw out pro-individual and pro-business attitudes. The critical issue here is defining jurors who agree and disagree with notions related to individual and corporate accountability when someone is injured.
It’s not a science. Start with that undeniable conclusion. Then, consider the scope of the issues jurors must resolve in your case and make sure each and every issue is discussed in voir dire. Don’t leave any issues to chance. Define for yourself the juror attitudes you can live with and those you know for sure will poison your client’s chances of winning. Having prepared yourself on these subjects before voir dire, pose questions that allow panel members to express their views, which in turn allows counsel to identify jurors who are angry, empathetic or fearful.
Larry E. Coben is a shareholder at Anapol Schwartz. He has served as lead trial counsel in some of the most complicated civil trials and appellate court proceedings in the country, and is widely regarded as an expert in “crashworthiness” and motor vehicle safety matters.