In previous issues of Insights, we have discussed the value of having a trial supplemental juror questionnaire (SJQ) and some strategies for improving the likelihood an SJQ will be accepted in a case. Sometimes, however, the question is not whether we should create an SJQ for use in trial, but how best to repurpose an SJQ that was created for use in a previous trial. Such a questionnaire may have a higher probability of being accepted by the court, but it may not contain all the questions we want to ask for the current trial. So what do we do when we can only make minor changes to an existing SJQ? Here are some quick tips for an SJQ when content, space and formatting changes are limited.
Look carefully at each existing question individually and ask the following:
- What information is this question seeking? What types of responses are possible for jurors to give? What goals are accomplished by leaving this question in the SJQ? Does removing the question affect the flow of the questionnaire? If the question will not yield valuable information, consider deleting it or note that it is a potential question to negotiate off the questionnaire during multiple revisions with opposing counsel. By deleting the question, you make room for a question that could provide you with better information. On the other hand, leaving it on as a potential negotiation item when coordinating with opposing counsel gives you a few bargaining chips to work with later.
- Who does this question (and its subparts) identify? What responses will be flagged as revealing something about a juror? Does this question identify jurors that my side wants to strike and mask my best jurors, or is it the other way around? Are my best jurors being identified to the other side? Consider the aggregate of responses to the questions. If the best jurors for your side are being called out through a particular response category and the worst jurors for your case are being hidden, remove the question. If this question is not identifying anyone for either side, put it on the list for potential deletions in favor of a better question, or as an item for negotiation.
- Are these response categories adequate to capture the information that I need, or are they too general and tell me nothing? Are the response categories too broad and potentially cause me to miss an important fact? For example, if the question asks for a range of answers wherein jurors must circle a number on a range from 1 to 10, what is the difference between a response of “2” versus a “4”? In a different type of scale, what is the difference between a response of “sometimes” versus “occasionally”? Is there enough variation between response categories that I am actually learning something? Is there follow-up space for jurors to explain their answers, if necessary? Ask yourself, “Am I learning what I should be learning from these response categories or should these be changed?”
- When considering the various issues in the case, are there questions that address the most sensitive, case specific topics? If the case is an employment case and involves defending a wrongful termination claim, have you asked about jurors’ negative experiences with a corporation? Have you asked if they, or anyone close to them, have ever been unfairly terminated from a job and asked them to explain the circumstances and who they blame for being fired? Have you asked if they’ve ever experienced other troublesome experiences in the workplace (e.g., harassment, retaliation, discrimination, etc.) and how these experiences were handled by their employers?
The questions that need to be on a trial questionnaire are those few questions that will help to identify the “strikeable minority” – i.e., the handful of jurors who sincerely cannot be fair to your client. The questions that are less likely to advance that objective, for example, ask jurors to list what historical persons they most or least admire. (It’s not that this question stands to tell you nothing, but who wouldn’t admire Martin Luther King, Jr. if it came to mind in that moment?) The goal of the questionnaire in general is that, even if the jurors’ responses do not rise to the level of a certain cause challenge, it will certainly help you to identify those jurors you want to talk to during voir dire (e.g., those who could possibly be pushed over the fence into cause challenge certainty, those who can be used to “sacrifice the queen” and those who really need to be talked to in order to find out which way they may fall).
On a side note, if the court and opposing counsel are open to formatting changes, consider a format that makes the best use of the “real estate” on the page. Are the margins small enough? Is the space between paragraphs too great? Can we change the questionnaire format from one column to multiple columns, or change the page orientation to accommodate more questions? If the questionnaire is in a grid format, consider taking away the grid lines to open up more space in the questionnaire. Additionally, be sure the questionnaire includes a preamble that contains an admonishment to jurors regarding outside research and social media. Some older questionnaires may not include this instruction and, given the changing court rules regarding the internet, it is certainly of the utmost importance.
It is possible to work with an existing questionnaire, even one drafted by opposing counsel; however, it is important not to just accept those questionnaires at face value, but instead to fight to ensure your most valuable questions are included. When space is limited, identify those few questions that are absolutely essential and that effectively identify a juror who cannot be “fair.”