We have all shared this experience. Jury selection is at 9:00 a.m. Monday morning. It is Sunday night and the national trial team, lead by an attorney from out of town, is meeting to discuss voir dire and jury selection. A jury consultant is present, meeting local counsel for the first time. Time is precious, and the implicit assumption is that local counsel will be able to answer all questions about the mechanics of the process so the trial team can concentrate on crucial strategic decisions. However, frequently counsel do not come pre-equipped with familiarity of the judge’s current preferences for this specific case. Further, many of the strategic voir dire steps require the exercise of judicial discretion and need to be resolved long before the eve of jury selection. Therefore, in this short Insights we suggest some preliminary questions, many of which will seem obvious, that should be addressed and answered collaboratively by jury consultants and local counsel long before the eve of jury selection to reduce uncertainty and channel trial counsels’ time more effectively and efficiently.
- Will the judge allow a jury questionnaire? If not, consider filing a motion to request the use of a questionnaire. Prior to filing the motion, find out if the questionnaire’s length is limited and if the judge prefers a particular questionnaire format.
- Develop a strategy for negotiating the form and substance with the opposition so the judge understands that the process will not impose a burden on her time.
- Which voir dire questions, if any, will be asked by the judge? Does the judge have a set of questions he always asks? If so, which of these questions will help us identify jurors for strikes?
- Does the judge allow the parties to submit questions? If so, does she typically ask the questions in the order submitted? Does she ask follow-up questions – e.g., asking those who have experience with a product if the experience was positive or negative.
- Does the judge allow attorneys to ask questions? If so, are there topics – e.g., religion or political party affiliation – that are off limits?
- Whether asked by attorneys or the judge, will the voir dire questions need to be submitted prior to voir dire? If so, when?
- How much time, if any, will the judge allot to each side or to herself for voir dire? Does our ordering and prioritizing of questions anticipate these time constraints?
- Will the judge provide a juror seating chart? If so, will the seating be assigned consecutively, by juror number, so that the first 24 people will be assigned numbers 1-24, or will seating be assigned in random order?
- Will the judge allow one or both parties to furnish numbered paddles for the jurors to identify themselves and make it easier for the parties to record answers or non-answers to voir dire questions? (This is especially helpful and efficient when voir dire is extremely time-limited and resembles something more like a “lightening round.”)
- Will the judge or clerk simply pull the next consecutive prospective juror, or will the prospective juror be randomly selected?
- Is the court willing to give counsel the random and alphabetical list of potential jurors?
- What is the judge’s recent track record regarding hardship strikes for long, complex trials?
- Will the judge or a clerk pre-screen jurors for hardship? When will such screenings take place? Will the parties be notified and invited to observe?
- Does she typically endeavor to rehabilitate potential cause strikes with directive questions – e.g., “Would you set that experience aside and follow my instructions?” Or, is she likely to allow the parties more latitude in establishing bias?
- Is she more open to some types of hardship excuses than to others – e.g., responsibility for an elderly parent vs. economic hardships imposed on a sole proprietor?
- When will the judge address hardship excuses and/or cause strikes – before or after voir dire?
- What are the rules of the game and the judge’s norms for the exercise of peremptory challenges?
- Will the parties submit their peremptory strikes simultaneously – so that one juror could potentially be struck by two parties – or will peremptory challenges be issued on an alternating basis?
- Does the judge allow back strikes?
- How many peremptory challenges will the judge allow each side?
- If there are multiple defendants, will the judge increase the number of strikes? If so, how will the number of strikes be allocated between plaintiffs and defendants? Among co-defendants?
- How much time will the judge allow the parties to make their peremptory strikes. Can this be determined ahead of time?
- How many jurors will the judge sit in the jury box?
- Will alternate jurors be chosen? If so, how many peremptory strikes will the parties get for alternatives?
- Will alternate jurors be permitted to deliberate at the end of the trial?
- Finally, and close to our heart, will the judge allow a consultant to sit at counsel table? If so, submit a motion in limine or enter into an agreement with opposing counsel that neither side will comment on the presence of a consultant. Even if the motion is denied, better to know ahead of time that such comment is fair game.
By: Jill Leibold, Ph.D., Director – Jury Research
A more extensive version of these questions, along with some top voir dire strategies, can also be found in the October issue of the DRI magazine as part of a larger article by Dr. Leibold. Please refer to: Hornbrook, S.E. & Leibold, J. M. (2008). Top Strategies for Voir Dire and Jury De-selection. For the Defense, 50(10), 46-50.