- Tsongas Litigation Consulting
JURY SELECTION IN TEN QUESTIONS OR LESS
How much can you learn about a person in 10 questions? Can you learn enough to know whether he or she can be a fair and impartial juror? If you could, what questions would you need to ask?
An article in the New York Times asked the question, “Will you be seated on a jury?” To answer that question, they posed 14 questions. Each answer would move the needle closer to either the plaintiff’s or defense’s end of the scale, and provide the rationale for the direction of the needle’s movement as well as why the defense or plaintiff attorney would strike you from the panel. The hypothetical case involved a woman suing an investment manager for $200,000 and punitive damages, claiming the manager mismanaged her investments.
As a Jury Selection Consultant, I’ve helped with jury selections all over the country, and as I watch attorneys and judges ask their questions, I am intrigued not only by the questions that are asked, but by those that aren’t. How many questions are asked simply because it’s habit and “that’s what I do,” versus the question being tied to finding a high-risk juror? What questions should have been asked? Often there’s far too much time wasted on questions that don’t “move the needle,” and not enough time on those that do. That’s part of the reason I found the New York Times piece so interesting—it made me wonder if it’s possible to uncover high-risk jurors in 14 questions. I believe that not only is the answer yes, but (as the title of this blog suggests), I think we can do it in fewer questions. However, to do so one has to let the old habits go; one has to stop asking questions that are designed to argue your case, and instead do the work of creating the high-risk profile ahead of time, then writing questions which uncover those attitudes and experiences.
In the New York Times article, the 14 questions covered five areas: 1) Demographics (blue or white collar job, employment status, age, and income); 2) Experiences (Knows someone working in finance industry? Volunteers for specific kinds of organizations?); 3) Attitudes (Believes there are too many frivolous lawsuits? Thinks investing is similar to gambling?); 4) Personality type (Likes crossword puzzles or other games that require concentration? Agrees/disagrees with the phrase, “everything happens for a reason”?); and 5) Leadership potential (Would try to get out of jury duty? Manages employees? Relationship to other jurors – keeps to self or chats with them? Works alone or in groups?).
I don’t want to quibble with the list or address whether or not I agree with their assessment of which way the answer moved the needle. You should take the test yourself to see how you fare. Instead, I want to suggest – make that “strenuously” suggest – that you re-think how you plan for jury selection: What are 10 things you absolutely need to know? Can you ask one question instead of five on the same topic? Are there any questions that you should ask EVERY time? And can you simply and directly ask the question? If you’re guided by these questions as you plan your next voir dire, what 10 questions would be on your list? Try it, and send me your lists – I’ll do a follow-up blog in a few months and anonymously share some of the best lists.
Here are 10 of my favorite go-to questions, and they aren’t just for Jury Selection Consultants, you can use them to great effect too. These won’t apply in every situation, and these are primarily written from a defense perspective, but if I’m going to make you do the exercise then I will as well.
Tell me about your job/occupation, including your primary responsibilities and whether or not you manage anyone.
How would those who know you best describe you?
How many of you have served on a jury before? Were you the foreperson? Did your jury reach a verdict? In favor of which party? [I know – I just cheated – but these were follow-ups!]
How many of you think that if a lawsuit makes it all the way to trial, it must be a really strong case?
How many of you would have difficulty NOT awarding money to someone who has been injured?
How many of you think that large damage awards are one of the best ways to hold corporations accountable for their wrongdoing?
Have you heard of “Company X” – and if so, have you ever had any kind of association with the company and/or what is your opinion of the company?
How many of you believe that large corporations put profits above everything else [or amend by stating “employees,” “safety,” etc.]?
How many of you strongly agree with the phrase, “Bad things don’t ‘just happen – usually someone or something is to blame?”
After hearing everything you have heard to this point, is there any reason you think you could NOT be a fair or impartial juror on a case involving these issues [be specific], and these parties [be specific]?