We often have this conversation with our clients when it comes to a supplemental juror questionnaire. Here’s how the conversation goes some weeks before trial:
LI Consultant: How about a supplemental juror questionnaire?
Attorney: The judges around here will never go for that.
LI Consultant: Have you ever asked for one?
There is an old saying that goes something like this: While you may not get 100% of you ask for, you will definitely get 0% of what you don’t ask for.
So, how do you get a judge to go for a supplemental juror questionnaire (SJQ)? It’s pretty simple – ask.
The trick is to make the decision easy for the judge to say “Yes.” While I have had the conversation that leads off this article countless times, I can probably count on one hand the number of times I’ve worked on a case in which the judge has rejected a juror questionnaire when it has been properly requested (and even more times when it hasn’t been properly requested, such as the judge who granted a request for the use of an SJQ on the morning of a criminal trial in Orlando). So, there are a few things that need to be done before you ask, to make the process easy and not time consuming on the judge and the Court’s staff.
How to Get Your Supplemental Juror Questionnaire Accepted
The steps to getting an SJQ require your time in advance of submitting this to the judge and therefore, it takes a bit of advance planning.
1. Get Opposing Counsel on Board. Sometimes this step is more difficult than getting the judge to agree. Get buy-in by assuring your opponent that their side will also get to add useful questions of their own.
2. Let the Judge Know That Both Sides Want a Questionnaire. Tell the judge during a hearing or pre-trial conference well in advance of the trial date, and take the judge’s temperature on the issue. Typically, if both sides are on board, the judge will will be open to the concept (but there are still hurdles to jump with the Court).
3. Negotiate the Final Draft with Opposing Counsel. It is important to approach the judge with a single, agreed-upon draft from both sides. If the judge doesn’t have to spend time negotiating questions on or off the questionnaire, the more likely he will agree to it.
a. Categorize the Questions You Include on the Draft Questionnaire. Questions should fall into one of two categories: those that lead to strong juror distinguishers and therefore, you can’t live without; and those that would be nice to have, but you’re willing to negotiate them away as bargaining chips to save your more important questions.
4. Make Process to Distributing SJQ Easy for the Clerk of Court and the Court’s staff. The less the court’s staff has to do and the court has to pay for, the more attractive a SJQ will be. That is, if the court has to spend time and money copying them for prospective jurors to fill out, the answer will be a resounding “No” from the judge. All the court has to do is hand the SJQs out when jurors arrive and provide us the forms to scan.
5. Ask and, If Necessary, File a Formal Motion Requesting the Questionnaire. If the judge is not on board, it may be necessary to bring more weight to bear on the issue. A motion requesting an SJQ needs to focus on three main arguments:
a. Candor. Most people are less likely to be fully candid in a public setting. Having a written questionnaire makes it easier for everyone to answer all the questions honestly.
b. Confidentiality. Knowing their answers are confidential helps jurors be more candid.
c. Judicial Economy. All the “stock” questions are already answered by the time jurors arrive for oral voir dire, thereby streamlining the process.
In addition, the motion can reference examples of venues (and there are hundreds) in which SJQs have been accepted.
It’s amazing what the universe can deliver up to those who ask. Or, as the motivational speaker Jim Rohn once put it, “Asking is the beginning of receiving. Make sure you don’t go to the ocean with a teaspoon. At least take a bucket so the kids won’t laugh at you.”
By: Robert Gerchen, Senior Consultant