By Debi Binkley, Bose McKinney & Evans LLP
Can’t you just tell me who I want on my jury?” As Dr. Studebaker very articulately and artfully presented at Voir Dire and Jury Selection Strategies, a CLE program on February 11, the answer is “No. It’s complicated.” There are so many variables to consider. It depends on demographics and attitudes. It depends on case type, venue, opposing counsel’s style, your case themes and arguments, your opponent’s case themes and arguments, whether you’re a “local” or an “outsider.” You cannot pair a juror type with a case type. The power you have is in deciding who you don’t want.
Characteristics likely associated with a verdict include demographics such as age, gender, education, employment and ethnicity, among others. However, case-relevant attitudes and experiences of potential jurors as well as their positive/negative attitudes regarding the experiences others have shared with them are more helpful than demographics in helping determine who you don’t want on your jury. General questions regarding attitudes and experiences will not be as beneficial – focus on case-relevant conversation with your prospective jurors. And remember: Voir dire is conversation – it is NOT cross-examination.
Long before voir dire even begins, take the LEAD: Learn, Evaluate, Aggregate, Development a plan. Negotiate with the court about when you can get the juror questionnaires (2-5 days should be sufficient). Then, learn about your jurors through standard and supplemental court juror questionnaires, internet searches and public searches. Even if the hit rates are low, the payoff can be big. Under no circumstances should you make contact with a prospective juror through social media or otherwise. CAUTION: Be sure to mark your search as anonymous when searching LinkedIn so that the juror does not know you searched them. And don’t be afraid to bring your computer to court during voir dire as the courts are increasingly allowing them to be used in the courtroom.
Next, evaluate the information you have gathered. Aggregate the evaluations via independent evaluations, sub-set evaluations and group evaluations. Your evaluations will differ, depending on the number of evaluations. Finally, develop a simple numeric rating scale to use in analyzing the jurors as you work on a tentative pre-voir dire jury selection plan. Consider variables such as the order of the jury in the jury box. Go through a practice exercise of who is in and who is out. Develop a strategy as to who you should keep or not.
Remember: Voir dire should NOT be the time to try your case. Don’t go into voir dire with a mindset of who you want on your jury. That makes it all about you. Rather, keep a mindset of who you don’t want on your jury. That makes it all about the jurors. Your primary goal is to eliminate biased jurors. Your secondary goal is to build rapport.
Next is the time to draw the LINE: Listen, Identify Risky or Unfavorable Jurors, Navigate Causal Challenges, Exercise Peremptories/”Strikes.” Ask open-ended questions to get the jurors talking more. Ask diagnostic questions to help differentiate between who will be fair or not. Listen to the answers given to you. You can’t do that if you are thinking about your next question.
Dr. Studebaker offered the following suggestions:
- Make it comfortable for the jurors to disagree with you so they will open up. (This sets a good tone for the rest of the jury’s observations.)
- Encourage jurors to interrupt you during voir dire.
- Never argue with a prospective juror. (Remember, all the other prospective jurors are watching.)
- Call on jurors and ask their opinion even if they don’t raise their hand.
- Make sure you hear something from every potential juror who has a reasonable probability of ending up on the jury.
Identify risky or unfavorable jurors: Now is the time to use your pre-voir dire jury selection plan, if possible. Focus on who you want to remove or ”deselect” rather than select. Identify those with unfavorable attitudes or those with experiences and characteristics similar to the opposing party. Consider who has the potential to be a “leader” (could be multiple jurors), but not someone who is obviously not liked by the other jurors. Make sure your “leaders” are persons who can get along with the other jurors. They will lead in arguing your case for you. Focus on jurors who are likely to get on the jury if you do not strike them. Keep a running notepad of who to keep or not.
Navigate your causal challenges: Now is the time to implement your strategy to use causal challenges and take the lead regarding strong biases. Identify the criteria for a challenge for cause as defined by rule and case law in your jurisdiction. Thank your juror for his or her truthful responses; however, clearly confirm bias in this case. Confirm strength and persistence of the belief. Protect against the later possibility of a juror complying with normative pressure to “consider the evidence in this case and be fair.” Use reflective listening, using language such as “If I’m hearing you right…” Cut off the path to rehabilitate this person.
Exclude with peremptory, if necessary. Reduce risk. Consider the composition of the entire jury in terms of the following:
- Leaders vs. Followers
- Possible group dynamics
Other procedural details to consider include whether the court will do any questioning, whether there is a time limit on your questioning, how your judge seats the venire in the courtroom and advances potential jurors into the jury box.
Don’t be shy in using motions practice, if necessary. Consider the following:
- Motion for early access to the jury information cards
- Motion for individual voir dire in cases involving sensitive issues or substantial pre-trial publicity
- Motion for attorney-conducted voir dire or for additional time for attorney-conducted voir dire
- Motion for additional time to consider information learned in voir dire
Arm yourself with case law. Courts have broad discretion with regard to voir dire and jury selection. That discretion is not without limits. Educate yourself as to the rules of this court and shut down the other side.
Lastly, Dr. Studebaker shared her own experiences with some general observations and snapshots on case-specific jury selection:
In most civil cases
- Prior litigation experience matters
- Beliefs about whether there is a “litigation crisis” matter
In commercial contract cases
- Attitudes about “words” versus “intent” matter
- Perceptions of big business matter
- Personal experience negotiating contracts matters
In products cases
- Perceptions of big business matter
- Beliefs about corporate responsibility and personal responsibility matter
- Habits regarding reading labels/instructions matter
- Personal experiences with similar products matter
- Personal experience with similar injuries matter
In criminal cases
- Authoritarianism matters – attitudes measured by RLAQ (Revised Legal Attitudes Questionnaire)
- Attitudes toward law enforcement matter
- Personal experiences with law enforcement matter
- Often, social-economic status matters
In cases with scientific evidence
- Attitudes toward science matter
- We depend too much on science and not enough on intuition
- It is not important for me to know about science in my daily life.
- Science and technology are making our lives healthier, easier, and more comfortable.
- Attitudes about paid experts matter
- Education and “need for cognition” matter
Many thanks to Dr. Christina Studebaker for her outstanding presentation to 53 attorneys and paralegals who attended her informative seminar. This CLE was co-sponsored by the IndyBar Paralegal Committee and the Litigation Section as the first seminar in the 2015 Litigation Series.
Dr. Studebaker is Vice-President of ThemeVision LLC in Indianapolis, Indiana. She has consulted on civil and criminal matters pending throughout the United States. She has extensive experience combining her social science expertise and statistical analysis skills to help trial teams ascertain effective trial themes and translate jury research and community survey results into practical litigation strategies. Dr. Studebaker has designed and conducted mock trials, jury simulation studies, telephone and Internet surveys, public opinion polls, and post-trial juror interviews.
She has experience consulting on a wide variety of litigated matters, including products liability litigation, insurance coverage actions, employment discrimination claims, sexual harassment claims, medical malpractice claims, intellectual property cases (patent, trade secrets, trademark, and copyright), complex commercial litigation, commercial class actions, and white collar criminal defense matters.
Dr. Studebaker received her Ph.D. in Social Psychology from Northwestern University in 1996. She completed her post-doctoral training in juror and jury decision making at the University of Nebraska, where she earned a Master of Legal Studies degree in 1998.
Prior to joining ThemeVision, Dr. Studebaker spent three years in the Research Division at the Federal Judicial Center, conducting empirical research on the judicial system. She also served as a professor of psychology for several years, teaching both undergraduate and graduate students.
For more information, contact: Christina Studebaker, Ph.D.,
317-261-7951 or 317-229-3133 – Studebaker@themevision.com