HOW JURY SELECTION CONSULTANTS HELP ATTORNEYS WIN CAUSE CHALLENGES
This weekend I witnessed the most brilliant compliance gaining strategy implemented by a fifth grade girl wanting her cohorts to engage in a game of Cranium. The other three in the group (one being the pesky little brother) had different agendas. One wanted to play Wii. One wanted go outside and throw a football. The pesky little brother would do just about anything except what his sister wanted to do. Given the separate agendas, it was no surprise when the girl’s enthusiastic suggestion to play Cranium was met with quick rejection. This is when the brilliance started. Here’s how it went:
Madison: “Do you guys like art?” Other kids: “Yes!” Madison: “Who’s the best drawer?” Kid #1: “It’s got to be me!” Kid #2: “Nuh-uh. It’s me.” Madison: “Are you guys good at acting?’ Kid #3: “Yes, I love charades!” Madison: “I bet the girls are better actors than boys!” Boys: “No way!” Madison: “Wanna bet?” Boys: “Ya. Bring it on.” Madison: “Ok, I’ll set up Cranium. The boys take on the girls, and we’ll see if the boys or girls win!”
Next thing you know, the kids were teamed up on the floor, huddled around the game board, ready to beat the competition.
The lesson? The first time Madison made her suggestion, she cut to the chase too quickly. Securing compliance took a little massaging. Ok, maybe a little manipulating, but hey, she got what she wanted.
An effective strategy for securing the right answers to satisfy grounds for a cause challenge is not very different. Think about the response to a question that cuts right to the chase: “Can you be fair?” This question will almost always be met with the socially acceptable response. Even a potential juror who has admitted that she distrusts all large corporations is likely to say she can be fair and impartial if the question is asked too hastily. However, she might admit to the tendency to be unfair if the questions lead her there.
Consider the following dialogue (taken almost verbatim from an actual voir dire):
Attorney: “Thank you for your honesty about corporations. It sounds like this is a fairly strong opinion.” Juror: “Yes. I would say that’s true.” Attorney: “How long have you felt this way?” Juror: “Oh, geez. I don’t know how long. I guess most of my working life?” Attorney: “Do you think your opinion is going to change any time soon?” Juror: “I highly doubt that.” Attorney: “When you hear stories about large corporations, are your opinions generally confirmed?” Juror: “You know these days, I’m not surprised when I read stories of bad corporate behavior. It’s par for the course.” Attorney: “When you see a headline with a corporation in it, do you pretty much already know what it’s going to say?” Juror: “Pretty much, yes.” Attorney: “Do you ever say to yourself, ‘I’m going to keep an open mind about this article and hope for the best?’” Juror: [Laughs and shakes head.] Attorney: So it seems pretty reasonable for me to assume that you have those same thoughts and feelings as you sit here right now.” Juror: “Yes.” Attorney: “And as much as you might want to have an open mind, it sounds like you’ve already been put to that test, and it’s not easy for you.” Juror: “I would say that’s true.” Attorney: “It sounds like maybe this isn’t the best trial for you since you already have some strong feelings.” Juror: “Yes, I would agree with that.”
It will be difficult for opposing counsel to rehabilitate this juror. She’s already admitted a long time, strongly held bias. She is unlikely to turn the other cheek even upon judge inquiry. The trick is to get the juror to say in their own words as often as possible that they have a bias, can’t be fair, are not open minded on the subject, or would find it hard to listen without skepticism. These words are easy to reiterate in a rehabilitation attempt if they were previously said out loud. This is how it played out in the above example:
Opposing Attorney: “You’re a fair person aren’t you, Ms. Jones?” Juror: “I’d say for the most part yes.” Opposing Attorney: “And if the judge instructs you to keep an open mind, you would try, right?” Juror: “I will certainly try. But if the evidence is going to be of corporate wrongdoing, it’s going to be hard.” Opposing Attorney: “Fair enough. But you’ll consider all of the evidence first, won’t you?” Juror: “In the context of what I already think? Yes.” Opposing Attorney: “Will you base your decision on the law or your opinions?” Juror: “Of course, I’ll follow the law, but my opinions are still my opinions.” Opposing Attorney: “But you said you were a fair person.” Juror: “I think my opinions are fair and warranted.” Opposing Attorney: “Thank you, Ms. Jones.”
Of course not every juror who expresses bias will be a candidate for cause. That said, there are usually two or three people on the panel who can be excused with the right line of questioning. In addition to the obvious cause issues (affiliation with a party, stakeholders, direct case experience, etc.) if you take the time to lead a juror to the realization that he or she can’t be fair, you will gain a competitive advantage against your not-so-savvy opposing counsel. Our clients have been pleasantly surprised with the number of cause challenges granted when they’re not so quick to jump to the end game. An experienced jury selection consultant can help craft the right line of questioning to increase your competitive advantage.
Some jurors will admit bias more quickly than others; some need a thoughtful line of questioning. If you sense that a juror is leaning toward the socially acceptable “I can be fair” response, take a step back and ask softer questions:
Establish the strength of their opinion: “How strong is this opinion?” “How long have you felt this way?”
Establish the importance of their opinion: “Do you discuss this topic with others?” “This seems like an important issue to you.”
Help them realize that their opinion is not likely to change: “Do you think anyone here can change your mind today?” “Is there anything that would change your opinion?”
Get them to admit that they can’t separate their opinions from their decision-making: “Do you think you can erase that part of your brain?” “Is it possible to put your feelings aside?” “How would you go about putting those feelings aside?”
If there is true ground for a cause challenge, it should be revealed with these types of questions. At the same time, recognize when a strong opinion doesn’t necessarily impair an ability to be fair. Don’t push for cause when there is nothing there. Take for example this voir dire exchange:
Attorney: “Mr. Smith, you said your wife used to work for the school district. Why is she no longer there?” Juror: “She was terminated from her job.” Attorney: “What were the circumstances?” Juror: “She was told it was performance, but I think her new boss didn’t like her.” Attorney: “Do you have any hard feelings against her employer?” Juror: “I’m not happy she lost her job.” Attorney: “So some hard feelings there?” Juror: “A little bit maybe.” Attorney: “The school district is the defendant in this case. Do you think you will think about your wife’s circumstances and your feelings in this case?” Juror: “I think every case is different. I will listen to the evidence before I make my decision.” Attorney: “How do you think you can separate your wife’s situation from this case?” Juror: “Honestly, I am a very fair person. I think every situation is different. The school district could be wrong in one circumstance, and right in another. You have to look at every situation differently.” Attorney: “But it might be better if you didn’t have to test your ability to be fair by sitting on a trial with issues that you have an opinion on?” Juror: “You know, I really don’t know anything about this case. I think that I could be very unhappy that my wife was fired but still find in favor of the school district.” Attorney: “Thank you Mr. Smith.”
Clearly this juror is not going to admit to having a bias in this case. Whether he does or not is a different story, but no amount of “leading a horse to water” will get this juror to drink. Your time is better spent exploring other issues to find more fertile grounds for cause and gathering information to inform your peremptory strikes.
So next time “you want to play Cranium,” think about what it might take to get others to join in. You might just be surprised at the results.