A Surefire Six - Step Approach, Based on Thousands of Jury Research Case Studies, To Assure an Unbiased Jury
by Dr. Amy Singer
The Sixth Amendment to the Constitution guarantees all trial parties an impartial jury. But it is only through the skillful use of challenges that the able litigator can make that guarantee a reality for his or her client. Since it takes only one biased juror to poison other jurors and ultimately kill a case, it is vital to seat jurors who can approach the case with open minds. What, therefore, is the most effective method to successfully challenge biased jurors for cause?
Over the course of 15,000 jury research case studies during the past 15 years, our firm has developed a surefire approach to get biased and/or problem jurors off for cause. This six - step plan is straightforward and easy to implement. It provides a proven methodology to eliminate biased and troublesome jurors before they can damage your case. Plus, it helps the attorney immediately get off on the right foot with jurors, while at the same time setting a positive mood and tempo for voir dire. Here's how it works.
Step One - submit a Memo of Law
First, the attorney must submit a Memo of Law to the judge. This Memo should detail all recent law regarding challenges for cause. This enables the attorney to help guide the judge in establishing the basic ground rules regarding how jurors can be struck. This is extremely important because it means both attorneys will be required to operate according to the same strictures concerning challenging jurors for cause.
Our firm's experience indicates that you will have a far easier job getting problem jurors off for cause if the Memo of Law is submitted before jury selection. By handling in this manner, you will avoid the often awkward and time-consuming task of repeatedly dredging up various parts of the law concerning juror challenges at inopportune moments during voir dire.
Experienced litigators know that having to examine the law concerning juror challenges on a juror by juror basis during voir dire seldom sits well with jurors, or, for that matter, with the judge. It is much better, therefore, to get the necessary ground rules established concerning juror challenges before voir dire. (One essential rule to be sure and request: It is not possible to rehabilitate a biased or opinionated juror. If it has become clear that the juror holds a preconceived notion or attitude that can reasonably be interpreted to be prejudiced against your client and/or their case, then you should be able to have that juror quickly removed for cause. Short of this, you should try to at least get the ground rules straight regarding bad jurors, and what the procedure should be if a potential juror gives a "cause" for alarm" answer.)
Step Two - employ open-ended questions during voir dire
Attorneys often use voir dire to try to subtly (and sometimes not so subtly) argue the case; or they employ close-ended questions to attempt to pin jurors down to preconceived notions favorable to the client. Both of these approaches are wrong-headed and likely to irritate the jurors and the judge. And these tactics fail in another important way: they will in no way enable the attorney to elucidate the jurors' true feelings about the case.
The fact is that, during voir dire, far too many attorneys rely on useless (and often insulting) close-ended questions that are almost guaranteed not to shed any light on a juror's real attitudes ("Are you sure you can approach this case with an open mind?"). Our research shows that close-ended questions designed to condition ("You'll be fair, won't you?) or to educate (You understand they have the burden of proof, don't you?) anger jurors because they insult intelligence, and negatively affect the attitudes of jurors towards the attorney asking the questions.
Instead of close-ended questions, attorneys should plan on a series of open-ended questions designed to elicit meaningful (and thus illuminating) responses from the jurors. It is only through such responses that you will be able to determine the jurors' true attitudes, and thus weed out bad jurors before they can taint the other panel members.
Open-ended questions usually begin with phrases such as these: "what are your feelings about..." or "please share your thoughts about..." or "please tell us your opinion about..." And they usually end with your specific concerns, such as "corporations," "employment lawsuits," "people accused of child abuse," "the motorcycle industry," or "lower back pain." For these questions, the beginning is just as important as the ending.
Open-ended questions act as lodestars that accurately point the way to how the jurors truly feel about the key case issues. They are designed to promote full and open responses from the jurors. Therefore, be sure and let jurors elaborate on their feelings and attitudes. React positively to all responses, especially the horrendous ones. The only way to get a juror off for cause is to let them broadcast their biases and prejudices so that they become obvious. Be sure, therefore, to let prospective jurors speak as fully as they feel necessary. (The bad ones are digging their own graves right there in front of you.) Do not attempt to rehabilitate the jurors as they respond.
Step Three - accurately record all responses
In order to effectively de-select problem jurors, you need to keep an accurate record regarding exactly how each juror feels about all of the important case issues. I suggest that you have someone transcribe the full responses as given. This written record will help you keep all juror responses in order. Plus, you will be making a worthwhile record detailing juror attitudes for possible later use in the trial.
Step Four - poll the other jurors
Step four is conducted in conjunction with step two. It involves polling the other jurors to determine whether they may also share prejudicial attitudes as expressed by those jurors already questioned.
It is handled thusly (considered from the defense attorney's point of view, and using a product liability case as an example): You ask a prospective juror what his or her attitudes are concerning corporations that manufacture consumer products. The juror responds that, "Manufacturers are only interested in their bottom lines, and don't really care that much about product safety." You immediately thank the juror for providing such an honest and open response, and for evincing the courage to speak his or her mind so freely.
You then ask how many jurors agree with the sentiments expressed, and note those jurors who respond positively. Be sure and reinforce any positive responses just as fully as you did when the problem attitude was expressed by the first juror. You then repeat this tactic with any other problem responses that come up.
Voir dire is a psychological process
Attorneys must understand that voir dire is primarily a psychological process more than it is a legal one. It will therefore be helpful to keep in mind the most basic psychological principle:
Reinforcement increases the probability of a response.
This key principle, plus our firm's own extensive jury research findings on how to get jurors to open up and give honest answers, point to the following: If you want someone to do something (e.g., let you know how he or she truly feels about your client's case), you must be sure to reinforce a positive response (i.e., an honest answer).
What about contamination?
Many attorneys think that negative responses expressed during voir dire are likely to contaminate the other jurors. Our jury research indicates otherwise. Remember: voir dire is primarily a psychological process - 12 individuals are, in effect, being cued by the attorney to react at a subconscious level according to their deeply-felt individual beliefs and prejudices. Psychologists know that you really can't change beliefs - people either have them, or they don't. One person may believe, for example, that a black cat crossing his or her path is an ill omen; the mere statement of this belief, however, is unlikely to change the minds of others who don't believe in omens.
To relate this concept to our product liability case, some jurors may believe that manufacturers only care about increasing the sale of their products, and that consumer safety is of far less importance to them than are sales year-to-date. Other jurors, on the other hand, may feel much differently about the issue. The litigator's job during voir dire is to find out exactly who among the jurors feels each way, make sure these feelings are clearly expressed, then plan to challenge for cause accordingly.
Another objection sometimes raised to the voir dire strategy described is that through the polling process, the attorney will be needlessly polarizing the jurors. But think about it: in this particular instance, polarizing the jurors is clearly beneficial. If half the panel believes without evidence that your company is probably just another business entity without ethics, willing to sell anything to boost profits, then half the panel won't be returning after lunch - they will be off for cause.
Step Five - clearly confirm juror bias
It is important during voir dire to flag juror bias so the judge and others in the courtroom will be able to clearly perceive it. This can be accomplished through a series of goal-oriented type questions. For example:
Attorney: What are your feelings about the attitudes toward product safety of companies that manufacture consumer products?
Juror: Most of them only care about product safety when someone sues them.
Attorney: Thank you (reinforcement). That's exactly the type of honest answer we are looking for. (To the other jurors:) How many of you agree? How many of you believe that most manufacturers could care less about product safety?
Jurors: Yes, we agree.
Attorney: (Repeats some variation of the necessary reinforcement, then ask them to expand on their attitudes about manufacturers.)
Attorney: (To the appropriate juror:) How long have you felt this way?
Juror: Five years.
Attorney: Your feelings don't change like the wind, do they?
Attorney: Not likely to change your mind in the next few weeks, are you?
Attorney: Thank you for your honesty.
Step Six - strike problem jurors immediately
The final step is to strike biased or otherwise problem jurors for cause as soon as you can. Our research indicates that problem jurors often do more damage during breaks and lunchtime than they do inside the courtroom. Problem jurors often engage other jurors in "negative" conversations about case-related matters (e.g., about certain types of attorneys, your reputation, Uncle Walter's undiagnosed heart attack ["the doctor should have seen it coming"], and so on). It's best to get them out of the picture as soon as possible, before any real contamination can occur.
One bad apple can spoil a barrel. One bad juror can taint an otherwise objective panel. Follow these six steps, and you will have established the groundwork to successfully challenge for cause those prospective jurors who may already be predisposed against your client, and/or their case.