When it comes to litigation, voir dire, and the jury selection process, small towns in America are different from larger cities in more than just size. Sure, every venue comes with its own hometown culture and shared experiences; but, when the towns are smaller, a greater percentage of jurors share in those same experiences and knowledge base. Such a tight-knit network can be a challenging barrier for an attorney seeking information in voir dire.
Do smaller communities view a non-native attorney suspiciously? Do the jurors know each other or the plaintiff? Do the jurors see the case as an opportunity to help their fellow community member (aka the plaintiff)? The nuances of every venue are important to consider, but smaller towns come with their own unique traits. Below, we explore four key challenges of jury selection in smaller venues:
1. You are an outsider, and jurors don’t warm up quickly to strangers.
As a non-native to a venue with a small population, it’s often difficult to get jurors to open up about their knowledge of the case or parties, or even just their own attitudes and experiences. In a tight-knit community, the idea of revealing too much to an outsider can be uncomfortable. Even though jurors may be willing to address their friendship with the local counsel via schools or church, they still refrain from offering information that isn’t carefully and specifically drawn out of them in voir dire. But while your early questions may result in a sea of stoic faces, with the right approach and a long enough voir dire, most jurors will tend to offer answers.
To make some headway, keep in mind that no one wants to be the first to raise their hand. So help get the conversation started by asking questions of the individual jurors. Begin with an easy, benign question so as not to put someone on the spot and to show jurors that voir dire isn’t so scary. Then, you can snowball around the jury box with something like, “Mrs. Jones, what is your reaction?” Furthermore, be sure to ask the important questions more than once, and in different ways. It is not uncommon for jurors to respond only after the fourth or fifth attempt at the same topic. Indeed, when one rural mountain community juror we encountered was asked why she hadn’t responded to the four prior attempts to elicit the same information over the preceding two hours, she responded, “You didn’t ask the question exactly like that last time.”
2. There can be more stealth jurors in small venues.
During a recent voir dire, one juror was directly asked about his past employment, which he had not mentioned on his juror information form, and he divulged that he had worked with the same employer as the plaintiff. Although the juror had been asked several times about knowledge of the plaintiff, he never disclosed that he had worked with the plaintiff until directly pressed. As he made his way to the bench for private questioning, he muttered, “Well, I guess I just made a mistake,” indicating that he had been trying to get seated on the jury by suppressing his knowledge of the plaintiff and his employer. The juror was struck for cause, and as he exited the well, he saluted the plaintiff, who turned out to be a former co-worker.
In the majority of cases, jurors disclose their background information in an attempt to get out of jury duty. But in smaller venues, we’ll sometimes see more jurors trying to stay on a panel to help the local contingent. It makes sense: these jurors will eventually have to go back to their neighbors, their schools, and their churches, and explain why their verdict went in either direction, and one can imagine the awkwardness of returning to common grounds having voted against a member of their community. It can help to encourage jurors to respond to voir dire questions by introducing the court reporter and explaining that he or she will be documenting everything for official Court records, so it is important for each of them to attend to the questions and provide accurate answers, and that when in doubt about whether to answer something, more is better. This can give some jurors second thoughts about omitting key information while alleviating social pressure to stay silent to help rush the process through. To reduce the chance that you’ll sound adversarial to the jurors, empathize with them that you understand the process is slow and boring at times, but you’re all in this together.
3. Much of the panel knows each other.
One of the downfalls of a small venue is that (as mentioned above) not only do the jurors often know the attorneys, judge, and parties, but they also know each other, either by relation, employment, neighborhood, or from their kids’ school. It is not uncommon for at least half of the venire to raise their hands that they know another juror. In one recent trial, two jurors seated near each other spoke at a break and discovered that they were related – one juror’s uncle was the other’s grandfather! We encounter husbands and wives, siblings, bosses, and employees – all sitting next to each other. In another trial, four of the younger jurors in the jury box had recently been students of the high school teacher in that same jury box.
And unless a juror is a direct relative to the plaintiff who could potentially benefit in some way from a damage award, it can be difficult to have cause challenges granted for knowledge of the lawsuit, the attorneys, or other jurors. Typically, the judge will merely ask the jurors if they can be fair, and because most people want to be seen as fair, they agree they are up to the task. At times, there aren’t enough peremptory strikes to remove jurors with existing relationships, so it’s important to prioritize those relationships by the influence or power one juror may have over another. For example, a manager and hourly employee do not come with equal footing. And it would be important to assess the potential for several jurors’ former teacher to play an authority or knowledge-based role for them in deliberations.
Another issue in small venues is that it is not uncommon for the jurors to have their own similar lawsuits, to be related to someone with a similar lawsuit, or even to have been designated as a witness (or deposed) in the current litigation or other litigation against the same defendant. Defendants should therefore review their litigation databases for plaintiff names and witness names to identify friends or relatives of the plaintiff with their own cases, similar cases against the defendant, or those who are scheduled to be deposed in these cases. Some jurisdictions have a rule that anyone with a pending suit must be dismissed – obviously, this makes such information even more critical to ascertain. In one recent jury selection, we discovered that six jurors (or their spouses) had pending litigation against the defendant – and none disclosed the lawsuits on their juror information cards. Come prepared with the jurors’ names that were identified in other similar lawsuits, the cases they were involved in, and their role, and discuss challenging these jurors for cause with the judge before the jurors enter the courtroom.
4. You’ll need a surrogate venue for pre-trial jury research.
When a venue has too few jury eligibles, it’s a good idea to look into a surrogate location for conducting a mock trial or focus group, to avoid any overlap among jury eligibles who could show up for jury duty in your case. It isn’t always the easiest task to find another county – even in another state – that exactly replicates the demographic, employment, socioeconomic, and political landscape of the actual venue, but a very close surrogate is possible.
In any context, preparedness is the best strategy. Performing thorough research into your venue certainly has advantages, and can reveal interesting insights about American sub-cultures and lifestyles you may not encounter every day. Of course, let us know if you are facing a small venue; we can offer further solutions to help you navigate trial in any close-knit community.
By: Jill M. Leibold, Ph.D., Director – Jury Research