In chess, your queen is a valuable piece that you want to protect, but there are times when strategically it makes sense to sacrifice your queen to gain a tactical advantage. The same can be true during attorney-conducted voir dire. There are times when it is very clear that a juror is the best juror for your case. This is the person who will hear your case story, understand it, assimilate it, and be your advocate in the jury deliberation room. Your first reaction is to protect this juror and try to ensure she isn’t struck for cause based on her attitudes and beliefs. However, when jurors like this exist (and they do exist), their value to your case is also very clear to the other side, as these jurors typically don’t remain stealth. Instead, they openly discuss their opinions in trial questionnaires (SJQs) and/or in open court.
For instance, in a recent breach of contract case, we identified very early a juror who held attitudes consistent with our case theme (we represented the defense who had a counterclaim of breach of contract). She noted on a trial questionnaire that contracts should never be broken and that it was disappointing that people broke contracts without thinking of the consequences. She openly continued her strong opinions in responses to additional SJQ questions and also did so in open court. It was clear to both sides that she would be a defense advocate.
While you may be able to save this juror from a cause strike to force the other side to use a peremptory strike to remove this juror from the panel (another tactical move that is strategically critical when striking jurors), these “good” jurors have an additional value for you. You can use them in open court to reinforce your themes by asking them key questions. This is a queen-sacrificing move. This voir dire strategy allows the entire panel to hear your case theme – in a juror’s own words. Using the example above, you want this person to discuss why a breach of contract is wrong from her perspective. In our case, she “educated” the other panel members, as well as the entire venire, about how it is important to live up to your commitments or the contract doesn’t have any meaning. She continued to discuss the importance of contracts with little prompting on our attorney’s part.
We call this “poisoning the panel” in our favor. When representing a corporate defendant, many times we say we don’t want jurors who hold, for instance, strong anti-corporate attitudes, to engage in too much talking as we don’t want them to poison the panel with their opinions on the subject. We just need them to say enough to establish a strong cause strike. However, when it is a good juror for our side who will be struck by the opposition anyway, we want to sacrifice that person and poison the panel in our favor.
With so many goals for voir dire that the questioning attorney needs to keep in mind (e.g., identifying the jurors who are biased and striking them for cause as the number one goal), and often with very limited time to conduct voir dire, sacrificing a key juror doesn’t always take primary focus. But remember, in the case where it is clear you are going to lose this person to a peremptory strike anyway, you can use this voir dire strategy to gain maximum advantage before that happens.
By: Merrie Jo Pitera, Ph.D. – CEO