Trial attorneys have at most four opportunities to speak to a jury: 1) a brief opening statement prior to jury selection (state only and on request); 2) jury selection, or “voir dire” (“to see one say”); 3) opening statement; and 4) closing argument. The first two are before the jury is selected, and only in the second, jury selection, is one permitted to ask potential jurors questions and hear their answers. This golden opportunity should not be squandered through ill preparation.
In federal civil practice the judge retains tight control over voir dire and need not allow attorneys to ask questions. FRCP 47. In state practice, however, the court now must allow counsel to examine the jury, and the court “shall not impose specific or unreasonable or arbitrary time limits or establish an inflexible time limit policy for voir dire.” CCP § 222.5. “[T]he trial judge shall permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case.” Id.
The days before trial are busy and stressful. Failing to spend adequate time on voir dire, perhaps grabbing canned practice guide questions the night before jury selection, can be a huge mistake. Think carefully about questions that fit “the circumstances of the particular case,” especially those of the other side. Jury selection is a golden opportunity to identify (and excuse) jurors that are predisposed to favor the other side’s case themes. I think the better term for the process is jury “de”-selection.
The judge will hear any challenge to a juror for “cause,” namely bias or prejudice. The judge will also give each side a fixed number of “peremptory” juror challenges for any reason with rare exceptions, for example seeking to remove all jurors of a certain race. The point of jury selection is to identify jurors who will tend to favor my opponent, try to lay grounds to excuse that juror for cause, and if cause is denied, use my peremptory challenges to maximum advantage.
Most trial lawyers are Type-A advocates who are hard-wired to persuade. Use jury selection to condition the jury to your case theme, the old saw goes. But going too far in this direction may be squandering precious time to underscore who the other side should seek to excuse.
I recently participated in jury selection in a case where the plaintiff, a father and doctor, sued his daughter for elder abuse in connection with trust instruments giving her valuable gifts of property. I represented the intervenor-wife-mother, who said the father did understand and intend the gifts. The pivotal question was why, and under what circumstances, did he sign documents that he now said did not reflect his intentions?
I asked, “by a show of hands, who thinks people should be bound by the agreements they sign?” Many hands went up. I had a key theme out and many agreed, but I did not ask follow-up questions of those with raised hands. I could have momentarily basked in satisfaction if I asked individual jurors to talk about why people are bound by signed contracts, but I would only have been giving the other side good notes for whom to challenge. Instead, I followed up with the people who did not raise their hands. “Mr. ___, I see you did not raise your hand. Why?” “Do you think doctors are too busy to read papers they sign?” “Have you had a situation where you felt you should get out of a contract you signed?” “Tell me about that?”
Having ferreted out potential jurors who sympathized with the other side’s theme, one could try for a strike for cause. Don’t ask whether people can be “fair.” Everyone will say yes. Ask “based on what you have heard so far, does anyone already feel” “themselves automatically tilting toward the doctor’s case?” or “that the defendant did something wrong?” Or, “you are going to hear that the law binds people to contracts they sign unless they bear the burden of proving certain specific defenses. Do you think you would have a hard time enforcing that law?” A “yes” answer would support an argument that juror cannot fairly judge the case.
Ask the other side’s questions. Plaintiff’s counsel should ask “who thinks a big problem in society today is runaway jury verdicts?” Defense counsel should ask who thinks people have a hard time getting a fair shake from big companies.
Workshop your weakest points. If your case has bad facts, don’t fail to strike potential jurors who will react strongly to those facts, only to have the empaneled jury hear about them for the first time in the other side’s opening statement. Ask “you are going to hear in this trial that [bad fact]. Who feels like you would automatically [find my client at fault] [deny my client a recovery] no matter what the rest of the evidence showed?”
Trial lawyers need to use jury de-selection wisely to excuse potential jurors who are likely to vote against them no matter how eloquently they plead their case.