Jury Selection in Litigation: Preparing for Voir Dire, Identifying Bias, and Leveraging Strikes

Picking the right jury is not an exact science. Success in jury selection relies on your interpersonal skills—your ability to stand in front of a group of people and make them like you, trust you, and share personal information with you. So, relish the fact that jury selection, especially with a 15-minute time limit, is not science, and realize that a social nature gives you a head start on connecting with jurors. There are woefully few absolutes when it comes to selecting juries, but you can do a few things to maximize your time and make the selection process slightly less random.

Jury selection, by its nature, forces attorneys to assume things about jurors based on incomplete information. What your gut says, however, is no substitute for actually visiting with members of the panel and receiving information on which to base your peremptory challenges.

The basics

The process of selecting a jury is known as voir dire. During voir dire, a panel of people will be questioned by both sides about their backgrounds, beliefs, and biases. The jury will be selected from this larger panel.

Each side has an unlimited number of challenges for cause. Usually, a challenge for cause is made when one side believes that a prospective juror has a bias against them. For example, a prosecutor in a capital murder trial might challenge a prospective juror who says that she objects to the death penalty because of her religious beliefs. The defense attorney might challenge a prospective juror who says that he believes that any defendant who does not testify is guilty.

Each side may make a limited number of peremptory challenges. A peremptory challenge does not have to be explained. That is, each side can simply strike a certain number of prospective jurors from consideration. The number of peremptory challenges varies according to the type of trial and the number of defendants.

Plan ahead

Use themes in jury selection along with effective questioning to determine biases and identify who to strike. Use juror questionnaires whenever possible. If you need to request the ability to use a questionnaire, file the appropriate motion or written request. It is important to make a record. Today’s venire panel is constantly changing, but there are similarities that exist throughout.

Today’s venire panel

Today’s jury panel is, overall, more educated and has access to more information than ever before. With remote education programs at their all-time high (thanks in part to COVID-19), the average juror has some college background. Jurors today learn by watching and doing, not reading, or listening to lectures. It has been referred to as the “Grab and Go Culture,” which means they expect you to get to the point quickly. They have likely watched media coverage of trials, most of which are criminal trials. Most jurors want to do good, but they need guidance on how to do that in your case.  Many of them participate in social justice movements in their personal time. A lot of them have some business acumen, and the overwhelming majority have a strong political association that guides their point of view on issues like fair treatment and equal opportunity.

The “Fake News” problem

The last several years, beginning with the COVID-19 pandemic, have likely had more influence on jurors than the decade before. Many have a belief or perception of what is often referred to as “Fake News.” Their trust in leadership and authority has been shaken. The COVID-19 pandemic likely had a direct impact on them personally, either through family or through the workplace.  In addition to consuming media coverage of famous lawsuits, such as the Johnny Depp v. Amber Heard case or the Kyle Rittenhouse trial, jurors also hear about some of the record-shattering verdicts in civil cases.

Not jury selection but de-selection

The process of selecting a jury is often called “jury selection,” but it’s more accurately called “jury de-selection”. In this process, parties don’t pick jurors they want, but instead remove jurors who might be a problem. This is an important mindset to have and will guide your process.

To de-select, you must identify life experiences that affect impartiality. Determine what biases are the most harmful to your case. You do this by listening to the jurors and talking less. This is where the ability to connect with people is so important. You need to get jurors to care about your case on a personal level and get them to relate the case to their personal experiences.

Beware of icebergs

It’s estimated that 90% of an iceberg’s volume is below the surface, while only 10% is visible above the surface. This is why the phrase “tip of the iceberg” is used. The same holds true for jurors. Dive down to look at attitudes, opinions, and life experiences that may lie below the surface.  Learn why a particular individual holds a particular attitude, and do not just blindly rely on demographics.

Know the court

“A Good Lawyer Knows the Law, but a Great Lawyer Knows the Judge.” Similarly, know your judge and the practices of the court. Find out what the judge will allow, how long for questioning, whether juror questionnaires are allowed, the form of questioning, the number of challenges, and jury shuffles.

Themes are important

Moral themes place moral blame and appeal to common values. You should not only develop your theme during jury selection, but you need to inoculate your case against the opponent’s theme.

Examples of moral themes in litigation:

• CARE vs. HARM—are you protecting us?
• FAIRNESS vs. CHEATING—are you just?
• LOYALTY vs. BETRAYAL—did you honor the agreement/policy/ practice?
• AUTHORITY vs. SUBVERSION—did play by the rules?
• SANCTITY vs. DEGRADATION—do you have clean hands?

As stated above, jurors want to get it right but need guidance on how to get there. Explain—through questions—why your client should win as a matter of fairness and justice. For example, “Why are we here?” rather than, “This case is about…” Themes must be relatable and grab the jurors’ interest. A good way to start is to focus on subjects people have definite opinions on, which they don’t mind sharing, won’t self-censor, and which reveal true thoughts/feelings.

Prepare early and practice

Preparation is often pushed aside in a frenzy as the trial date nears. However, it is critical to take the time to prepare for jury selection. You should not rely on your notes, as all your attention should be on the potential juror.

An effective voir dire has several characteristics:

• It feels like a conversation (because you are prepared)
• Allows questioner to look jurors in the eyes and show genuine interest
• Produces information about individual jurors
• Seeks to learn the WHAT and the WHY
• Is curious while cordial
• Reveals something personal about yourself
• Makes it okay to disagree or have a different opinion and
• Talks about biases and why everyone has them

Baston Challenges

This is rarely, if ever, an issue in your typical civil trial. Nonetheless, you should prepare for a Batson challenge. A Batson Challenge is an objection to the validity of preemptory strikes based on the argument they are being used to exclude jurors because of race or sex (or other “cognizable” groups).

Have a neutral explanation theory ready and documented, such as:

• Age
• Marital status
• Unemployment
• Failure to pay attention during voir dire
• Familiarity with the parties
• arrest or incarceration of a family member
• employment such as working as a teacher or social worker
• A juror’s clothing and attire, and
• Hostility towards the court or lawyers during voir dire

Tools to gain more insight.

Prior to the trial, you should assign each team member a task, like researching social media, recording answers, taking notes, and more. Have a plan for administration that reduces/eliminates extra work for court personnel.

When possible, you can and should request the use of a supplemental juror questionnaire. Sample questions for a supplemental juror questionnaire:

• What previous jobs have you held?
• Ever been terminated from a job?
• Ever believed that you were being discriminated against?
• Ever filed a lawsuit because of something that happened to you or a family member?
• Have you or a family member ever been a Plaintiff, Defendant, or witness in a lawsuit?
• Ever had a serious business dispute with a partner, customer, or client?
• From where do you obtain news about current events?
• What programs, podcasts, or streaming services are frequently watched?
• Do you consider yourself a leader, follower, or team player?

If time permits, use social media to research a juror further. Social media has its own benefits, such as having far more detailed information and strong opinions of the juror. However, know the footprint you’ll leave. For instance, will your search be identified to the juror (privacy settings)? Know your jurisdiction and limitations. For example, see the ABA Opinion 466 (April 2014)[1] regarding internet research of potential jurors. Some considerations for using social media are:

• What to look for?
• Which staff member oversees this research?
• Confirmation of juror card info (job/education/marital status).
• Inconsistencies.
• Photos –any big changes recently, significant events?
• How certain are you that this social media belongs to this juror?
• Whether no evidence of social media is important to you.

[1] American Bar Association, Standing Committee on Ethics and Professional Responsibility, Formal Opinion 466 April 24, 2014, Lawyer Reviewing Jurors’ Internet Presence; see https://www.americanbar.org/groups/professional_responsibility/publications/

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Casey Erick is a Shareholder at Cowles & Thompson, whose practice is focuses on commercial litigation and employment law. He represents clients in both litigation and transactional matters that span across commercial law, labor and employment, real estate, consumer protection, and general litigation including, but not limited to breach of contract, corporate trade secret theft, tortious interference, defamation, personal injury, fraud, and various other kinds of civil litigation.

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Articles on the DAYL website are provided for informational use only, and are in no way intended to constitute legal advice or the opinions or views of the DAYL.