By Amy Singer, Ph.D., Diana Greninger and Kemberlee Bonnet
When it comes to voir dire, attorneys have to de-select from the venire members they are “dealt.” It is similar to a game of Rummy. When your hand is dealt, you discard the cards you don’t want and keep the ones that will give you the greatest chance of winning. This might seem counter intuitive when it comes to voir dire, but people bring with them their worldviews and personality traits that are difficult to “pick” from. So how does one sort through these characteristics and decide who to de-select? First identify what kind of individuals cannot fairly decide your case.
Thirty years ago, our firm actually trademarked the term jury de-selection and changed the way voir dire was done. Up until then, attorneys focused on juror demographics and asked simple, closed ended questions that would answer “who do I want?” rather than “who I do not want.” Attorneys discussed jurors they liked based on their “yes” or “no” answers. We quickly discovered that we needed to ask open ended questions to reveal individual value beliefs. It became imperative to ask venire members open ended questions about the problem areas of each case in order to discover who would respond poorly to our arguments and evidence if selected.
Characteristics of an average jury panel
Based upon some of the potential characteristics a jury panel can be comprised of, how can you best approach de-selection of venire members? An experienced trial consultant can assist in this process, specializing in the composition of customized voir dire questions designed to elicit specific types of responses that are predictive of value beliefs that run counter to strategies in your case. In addition, an experienced trial consultant strategically analyzes jurors’ responses from a psychological perspective, identifying underlying signals that are relevant to your particular case.
Purposes of voir dire and strategies for success
Attorneys and jurors evidently engage in a relationship that is bound to last anywhere from a couple of days to a couple of months, depending on the duration of the trial. Voir dire is analogous to dating; one must talk about their deal breakers up front, otherwise one might end up with a divorce or, in court, a bad verdict. It is up to the attorney conducing voir dire to set up an environment that encourages open and honest communication.
Forget demographics – focus on value beliefs
Even though there are numerous studies that show that demographics have no correlation with juror behavior, many attorneys still rely on demographics. Most fail to realize that only if the case has a clear demographic component, for example a case involving a caesarian section, would juror demographics matter. Regardless, every jury de-selection should go beyond demographics and explore value beliefs.
Jurors bring with them their life experiences, worldviews and attitudes that automatically guide their decision making- they would be hardly human if they did not, as it is difficult to leave those traits at the door. For that reason, it is imperative to ask value belief questions and questions about the problem areas of your particular case in order to know who to de-select. Value belief questions typically begin with “what are your thoughts or feelings about (the problem area of your case)…” For example, in a case involving a wrongful death, the attorney should ask “What are your thoughts or feelings about compensating an adult for the loss of their mother? Why?”
A venire member might disclose that they have lost their mother. Attorneys must be direct and take the opportunity during voir dire to ask “You lost your mother and did not get compensated. What are your thoughts or feelings about compensating the plaintiff in this case for the loss of her or his mother? Why?” The juror will provide one of two responses: 1) “I didn’t get compensated, why should they?” in which case the juror is a negative influencer for the plaintiff or 2) “I didn’t get compensated, they deserve $20 million” in which case the juror is a negative influencer for the defense.
Based on how each juror answers, one is able to tell if it is a cognitive response (which means they can be swayed) or a sentiment response (which means they are not likely to change their mind). The key is to remember voir dire is not a time to condition jurors, but a time to de-select the ones that will most likely yield the least favorable outcome (negative influencers), while remaining extremely likeable to the jurors who will stay on the panel.
This is how to determine if people will relate better with your client or the opposition.
Identify influencers – life experiences and relating
It is important to identify how jurors relate to the problems and issues of your case. How does one identify influencers? One must ask questions to learn about venire members’ life experiences and personality traits. An influencer is a leader, not a follower, who has had similar life experiences that are critical to deciding the case. Influencers will be likely to share those experiences and their beliefs about those experiences in the jury room. Therefore, influencers are perceived as “experts” regards to a pivotal point in the case.
Often individuals who verbally express how they relate become influencers of the group decision. For example, when following the Casey Anthony case we discovered that grandmothers identified themselves with Cindy Anthony and became influencers in discussions relating to whether a grandmother should have known where her granddaughter was at the time.
There are two types of influencers: 1. Positive influencers (our best advocates in the jury room); and 2. Negative influencers (our nemeses in the jury room). To identify an influencer, ask a provoking question and assess how many times they respond with “I, me, my” as opposed to “they, the other person,” etc. This can signal that this person puts themselves above the trial situation, perhaps operating on the implicit, unspoken premise, “I’m more important than this trial. My opinion matters- never mind the evidence.”
Both positive and negative influencers portray themselves as “experts,” and therefore the trial team must conduct a thorough voir dire to identify and eliminate negative influencers. For example, in a case involving a caesarian section, a woman who has had one could lead her to becoming the group “expert,” so it is important to uncover that during voir dire and determine if you want such a person on your jury based on your case strategy. In an ideal world, it would be best to find ways for negative influencers to be excused for cause, and avoid using preemptory challenges.
Biased jurors – those with hidden agendas
People with hidden agendas consider the outcome of the case as having a personal impact on themselves. Perhaps an individual is connected to one of the parties in the case, or perhaps have very strong feelings about the nature of the case.
One way to identify hidden agendas is through strategic probing. Strategic probing can involve asking numerous questions suspect of the potential juror having a personal motive. If the potential juror has a hidden agenda, he or she will likely become uncomfortable and defensive when asked the questions. For example, in a case involving a large corporation, to identify a potential juror who is suspect of having strong negative feelings about corporations could be asked, “How many of you would work for this corporation? Why or why not?” This type of probing question would be helpful in identifying a juror who has a “take down the corporation” agenda. Another potential question to ask is “Why should there be a cap on damages in all cases? How many agree/disagree?” You need to know which venire members will be likely to award higher damage amounts and de-select them if working for the defense.
Another way of identifying hidden agendas that has become popular is through examining potential jurors’ social media sites. Many social media users have the desire to be very direct and transparent in providing their thoughts or feelings to the public. Numerous individuals often disclose information about themselves that they would not disclose in a face-to-face situation. For example, “It’s time for xyz corporation to suffer the consequences of their actions” is more likely to be expressed through social media than in the courtroom voir dire environment. Or perhaps a potential juror favors the corporation specific to the case and the corporation is listed as a “like” on his or her Facebook page, yet the potential juror fails to disclose their favor to the court.
Carefully word your questions recognizing that time and juror attention are limited
Judges that will allow unlimited voir dire are rare jewels. Even if you are given adequate time to ask questions, members of the venire will not be happy to be there and shift uncomfortably in those hard wooden benches. It is the attorneys’ job to recognize this and make the best out of a tough situation. Make every question count and make sure all members of the venire will be able to “join the conversation.” One can do that by asking questions that encourage jurors to share their honest opinions, rather than providing socially desirable results. Ask open ended questions and give jurors a chance to elaborate on their answers, so that they feel their opinion matters to you. When something important is brought up, ask if other venire members agree. Always treat jurors non-judgmentally; allow your co-counsel to pass judgment on their note pads while you carry on the conversation. Keep the conversation going – when you hear an answer you don’t like, don’t shut the juror down. Ask for clarification if needed and carefully maneuver the conversation so everyone can work efficiently. Every conversation has a beginning, a middle and an end. The key is not to get the last word but to talk through the issues during voir dire, when the attorney can still control the situation and potentially eliminate some of its participants, rather than allowing the conversation to end in the jury room.
Of course the type of person needed on one’s jury panel depends on how one is pursuing his or her case. An attorney must develop a sense of mutual respect with venire members and create a safe environment in order to uncover individuals who would likely not yield the best results. A well-trained, experienced trial consultant is an effective trial team member armed with the methodical skills necessary for you to successfully play with the “hand you are dealt.” What do you look for when de-selecting potential jurors? How often and under what circumstances do you hire a trial consultant for voir dire consultation?