What, me? Prejudiced? Absolutely not!
Almost no one thinks he or she is prejudiced. In fact, we all are. Jury selection must be conducted in a way that reveals the subtle and not-so-subtle biases held by the members of the venire.
Jury selection is a crucial element in achieving a fair result for your client. Without an impartial jury, the best representation and facts may not win the case. This is especially true in employment cases, given that the tort "reform" campaign by insurance companies has contributed to wide-ranging adverse public sentiment regarding discrimination actions. Furthermore, jurors bring with them their own employment experiences and the opinions they have formed from interactions with coworkers and managers. They rely on these experiences and opinions in analyzing the facts of your client's case and applying the law to those facts.
The primary goal of jury selection is to extract as much information as possible from potential jurors within the allotted time using the procedures allowed by the court. First, you need to know which character traits and beliefs will most likely work to your client's advantage or disadvantage at trial. Developing juror profiles, both positive and negative, will assist you in recognizing who is likely to start out favorably disposed to your client.
Developing juror profiles requires an objective review of the strengths and weaknesses of your case. Begin by making a list of the issues to be presented at trial and facts about your client. As you think about reactions people may have, list each of these issues or facts as a pro or a con.
As the plaintiff's attorney, you are not detached from your case, so using focus groups or trial consultants is helpful. If cost is an issue, use acquaintances or staff--or even perfect strangers like cab drivers and seatmates on airplane flights--to help develop the profile. People are always willing to express an opinion on a set of facts. Just strike up a conversation and ask what the person thinks of the case. Try not to reveal who you represent, because that is likely to sway the person's opinions, and he or she may not be completely honest with you.
You should consider three major factors as you evaluate each potential juror.
Employment. This is the most important factor for every panelist. People's jobs are strong indicators of their level of ambition, intelligence, socioeconomic status, opportunity or desire to interact with other people, concern for others, attention to detail, determination, and other personality traits. The presence or absence of these traits will indicate how a person is likely to behave in the jury room and will provide clues to a juror's attitudes toward corporations, employees, and supervisors.
As a general, but not invariable, rule, people most similar to your client or who share common experiences with the client will favor your case, and vice versa. Jurors who tend to favor the plaintiff's position in employment cases are often members of the working class. Many have union involvement or work in positions that are in short supply, so they value job security and understand the difficulty of finding comparable employment.
Unfavorable jurors generally include people in management positions who have authority to hire and fire. People working in positions that are readily available may feel that people should just switch jobs if they are unhappy with their current employment situation. This attitude is common to many Generation X jurors. Involvement in the insurance industry or big business is also a strong indication that the juror is likely to support the employer's position.
There are always exceptions. Although jurors who have had experiences similar to your client's are generally considered favorable, similar experiences may cause jurors to compare your client's circumstances with their own. This can be detrimental if they feel they would have handled a problem better than or different from the plaintiff. These jurors may also feel that their circumstances are worse than those the plaintiff is suing over, but they are still working. For example, a woman working in a male-dominated field where horseplay and profanity are prevalent may be less supportive of a plaintiff claiming sexual harassment than some male jurors would be.
Personality traits. Here are some general--but, again, not universal--principles: Empathy is the most valuable trait in jurors. People who can put themselves in another person's shoes are often more favorable to a plaintiff than are people who have difficulty identifying with others. Satisfaction with one's life, as opposed to bitterness about one's situation, results in generosity toward others. An ability or willingness to deal with complex matters and ambiguity is helpful in reviewing facts and applying the law to them. The tendency to make rush decisions and force complex issues into simple categories will stifle careful analysis of a plaintiffs claims.
Another characteristic to look for is a juror's leadership traits--or lack of them. Leaders can be dangerous in jury deliberations. They persuade other jurors, zealously defend their opinions, and hold out until other jurors join their side. A potential juror who openly and confidently expresses his or her opinions, especially of a controversial nature, during voir dire will serve as a leader in the jury room. Unless you are confident a leader will support your case, do not retain that juror. A leader with unpredictable opinions about your case is far more dangerous than a passive juror with neutral opinions.
Attitudes about lawsuits and damages. A juror profile must also take these views into account. Consider the following questions on these issues:
* Does the juror believe that employment cases should not be brought to court, or that lawsuits are an appropriate way to resolve these disputes?
* Does the juror believe that plaintiffs and their lawyers are greedy, or that they are correcting a wrong done?
* Does the juror believe that damage awards are always unreasonable, or that employers should be made to pay for their wrongdoing?
Once juror profiles are developed, begin working with opposing counsel and the court, if possible, to agree on the time, procedures, and scope of questioning allowed for voir dire. The most thorough and efficient means to obtain information from the panel is to distribute supplemental juror questionnaires.
The use of supplemental questionnaires is becoming more common and accepted by the courts. Nevertheless, pretrial motions and approval from the court are necessary. Court approval requires advance preparation; cooperation with opposing counsel, if possible; and, most important, well-prepared questions.
It is vital to make a timely request for a questionnaire for several reasons. First, the court must approve the questions before distribution. Second, the questionnaire must be distributed early enough to give the jurors time to complete them and return them to the court. Finally, you will need sufficient time before trial to review the prospective jurors' responses and prepare follow-up questions for voir dire.
Discuss a questionnaire with opposing counsel and try to come to an agreement. Working together in drafting the questionnaire and making a joint request will enhance the likelihood of court approval. If opposing counsel resists, file a motion with the court and provide a proposed questionnaire for its review.
Assure the court that using supplemental questionnaires saves considerable time in the courtroom and provides the attorneys with information necessary to fairly and quickly choose a jury. Take as much of the burden as possible off the court and its staff. If necessary, tell the judge that you will be responsible for all duplication and mailing costs and will perform any administrative tasks necessary in distributing the questionnaire. Also assure the court that you will work with opposing counsel on any disagreements about the wording of the questions or about which questions should be included or omitted.
In the motion to the court, stress that it is often necessary in employment cases to ask potential jurors whether they have had any experiences with discrimination or harassment and whether they have ever been accused of such conduct. Questions about experiences with rape, domestic violence, psychological treatment, and suicide are also common. Questionnaires encourage jurors to respond candidly and thoroughly because they are not asked to state their responses in front of strangers, which is a terrifying experience for most people. They also are not yet affected by the pressures of the courtroom, remarks from counsel, or answers from other panel members.
The answers provided on the questionnaire will not be specific enough for you to use as a sole basis for making peremptory challenges or to determine whether the potential juror should be struck for cause. Ask the court to permit you to conduct follow-up inquiry--outside the presence of other potential jurors--of panelists who respond positively to highly personal or controversial questions.
Individual questioning may be necessary for handling issues that may embarrass or upset the juror.(1) Also, you will not want a prospective juror's statements regarding a controversial issue to influence the thoughts or statements of the other jurors on the panel.(2)
Unlike voir dire questions, the questions in the questionnaire should call for brief and direct answers from the jurors. You will not have time to read lengthy answers and interpret the jurors' writing. The purpose of the questionnaire is to reveal areas in which the jurors may have biases that will affect the case.
Clearly, both the plaintiff and defendant will want to ask questions regarding their interests, so each party should be allowed to draft questions about matters it considers important in the form it prefers. It is also helpful to provide, along with the questionnaire, a list of the witnesses to be called at trial. Ask jurors to indicate if they know any of the named individuals.
The questionnaire should cover all the general background information that is typically sought in voir dire--such as name, age, occupation, marital status, education, and family--so that time is not wasted covering these basics in the courtroom. It should also include questions that will elicit additional information regarding potential conflicts or biases the jurors may have related to the case.
Although the court retains great latitude in deciding what questions should be asked on voir dire,(3) case law permits attorneys broad scope to uncover potential bias.(4) The U.S. Supreme Court has acknowledged that "voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges."(5) Therefore, counsel must be permitted to ask fact-specific questions in voir dire to make educated decisions regarding peremptory challenges.
Extracting reliable information from potential jurors is not an easy task. Many people will provide politically correct responses for the sake of propriety. Others may not even be aware that they possess highly prejudicial beliefs. Asking the panel members if they have any biases regarding your client's case will almost always produce an unqualified "no." Only by posing carefully constructed questions will you obtain reliable information on the attitudes and beliefs of the venire.
Effective questions must address current public sentiment and political issues in the media. Be aware of public issues, read the newspaper, know what is on television, review polls and surveys, and listen to community concerns. Read Ann Landers and Dear Abby. Remember that trials do not take place in a vacuum.
Questions about tort `reform'
A potential juror who is involved in the insurance industry and supports the tort "reform" movement is likely to hold unfavorable views about lawsuits. Ask the court to allow for questioning on insurance topics and cite supporting case law.(6) Also provide the court with newspaper articles, advertisements, and survey information to bolster your motion.
Although some attorneys worry that raising the insurance issue may start jurors thinking about the effect lawsuits allegedly have on premiums, almost everyone in our society has already heard these claims before reporting for jury duty. If a potential juror has not, he or she is probably living an isolated life and would not make a good plaintiff's juror in any event. Not covering tort "reform" issues could be fatal to your case if jurors with strong antiplaintiff sentiments pass by you without your knowledge.
The following questions will indicate bias regarding the civil justice system and can be incorporated into the questionnaire:
* Do you have any personal belief that there is a limit to what an individual should have as a money award, no matter what damages are proved?
* Have you ever heard anything about unreasonable jury verdicts in this country?
* Are people too willing to sue?
* How do you think insurance companies are doing financially?
* Have you, or someone close to you, ever worked for or been a stockholder of an insurance company?
* What are your views of the civil justice system and a jury's right to hear and decide discrimination cases?
* Do you have any reservations about the jury system, such as a belief that trials take too long or could be better handled by judges or experts?
Questions about employment
The panel members must also be asked questions about their employment and their interactions with other employees and managers. Questions should be worded to pertain to anyone with whom the juror has a close relationship. The experiences of a juror's spouse or significant other will greatly affect the juror's opinions. The following questions address these issues:
* Some people think lawmakers have gone too far in making laws that regulate the treatment of employees. What do you think?
* Have you or someone close to you ever had hiring and firing authority or supervisory authority over other employees?
* Have you or someone close to you ever been terminated from work or disciplined? Was it fair or unfair?
* Have you or someone close to you ever filed a grievance or made a complaint against someone or about something at work? What did it involve? What was the outcome?
* In a case involving a dispute between a manager and an employee, do you have any tendency to believe or find more credible the employee or the supervisor?
* Have you or someone close to you ever been accused of improper conduct at work or been the subject of another employee's complaints? If so, explain.
* Have you or someone close to you ever been exposed to the following at work: touching in a sexual way, threats, improper comments, unfair discipline? If so, please explain.
* If you were looking for a new job, what characteristics would be most important to you in choosing an employer?
* If you were to hire a new employee, what would you look for?
Questions about stereotypes
Always ask questions about the stereotypes associated with your case. In drafting your questions, ask what the jurors think about "most people" instead of "all people," because jurors will probably realize they should not generalize about "all people." The following are examples of questions covering stereotypes pertaining to race, age, and gender:
* Have you ever personally observed racial harassment or discrimination in any public or private place or in any workplace?
* Have you ever been in a situation where you felt racial tension--in a store, a bar, your neighborhood, or anywhere else?
* Have you ever been or felt threatened (physically or otherwise) by a person of another race?
* Do you think that most African Americans are less intellectual than other people?
* Do you think that most Hispanic people are less motivated than other people?
* Do you believe that it is hard to "teach an old dog new tricks"?
* Do you think older people have a problem changing with the times?
* Do you think that with age most people naturally become obstinate or slow?
* Do you think that with age most people are resistant to change or unable to learn as quickly as younger people?
* Do you think most women would not want to travel after the birth of a child?
* Do you believe that most women are more sympathetic than men?
In race and ethnicity cases, it is essential to explore the interaction panel members have had at work,, school, or church or in their neighborhoods with people who share the plaintiff's race or ethnicity.
Ask questions regarding differences in perception between people of different genders or races. For example, "Do you believe that what may not be offensive to men can be offensive to women?" or "Do you think that most African Americans are more conscious of the occurrence of prejudicial acts than nonminority people?"
Ask the court to mail the questionnaires to the prospective jurors two weeks before trial. This allows them time to reflect on their answers and gives you time to review the answers and prepare for voir dire. Before you receive the answered questionnaires, prepare a form or computer template for juror summaries that reference the questions asked. A separate form should be created for each juror.
If the court refuses to mail out the questionnaires or there is not enough time to mail them before trial, they are still effective when distributed the morning of trial. Have the jurors fill out the questionnaires when they report to court. While they do this, you can tend to any pending motions in limine or other matters that need to be addressed outside the jury's presence. Typically, all the questionnaires should be completed by noon and the jurors can be dismissed. The questionnaires should be copied immediately, either by the court or the attorneys, and a set of copies provided to each attorney. For the remainder of the day, you can review the responses and prepare for voir dire to begin the next morning.
When you receive the completed questionnaires, record the jurors' answers on the summary forms. This process is time consuming, and you will need several people to complete the job. The forms should then be color coded, using highlighters or other flags. Indicate favorable responses in one color and unfavorable responses in a contrasting one. Staple the summary to the questionnaire, and arrange the forms in alphabetical order. When each juror is called by the court, you can pull that juror's summary and have an instant reference for the topics on which you want to follow up.
Conducting voir dire
If you are permitted to use a questionnaire, it will simply provide notice of which jurors have opinions and experiences that may affect their ability to serve impartially on the jury. Understanding why jurors have these opinions and how strong their beliefs are will require you to ask additional questions in voir dire. Attorney-conducted voir dire is the most beneficial way for you to obtain the information on which you need to rely for making peremptory challenges.
Federal Rule of Civil Procedure 47(a) authorizes courts to permit counsel to conduct voir dire or to conduct the examination itself. Courts are often unwilling to allow attorney-conducted voir dire because of time considerations and the fear that attorneys will ask inappropriate questions. Courts have broad discretion in determining the form and scope of voir dire.(7) Move the court to permit attorney-conducted voir dire and to allow sufficient time to do justice to the issues in the case.(8)
Helpful language can be found in United States v. Ledee, in which the Fifth Circuit stressed that judges cannot possibly have the same understanding as the attorneys of the facts and nuances that may become relevant as the case is presented to the jury.(9) The court noted that "peremptory challenges are worthless if trial counsel is not afforded an opportunity to gain the necessary information upon which to base such strikes."(10)
If the court denies your motion for attorney-conducted voir dire, request that the judge ask specific questions that you will draft after reviewing the jurors' responses to the questionnaire.
When courtroom jury selection begins, if the court permits, start with the theme statement you have developed for use throughout the trial--for example, "This is a case about whether a woman can keep her job and her dignity." Then thank the panel members for their effort in answering the questionnaire and explain that it saved them considerable time in courtroom proceedings.
Warn the jurors that you will be asking some personal questions--not out of curiosity, but because they are necessary to obtain an impartial jury. If the judge approves individual voir dire out of the presence of the panel, explain the process to the jurors and say that if there is anything they want to discuss privately, they should let the court know so that they can be accommodated.
While voir dire is conducted, whether by the court or counsel, it will be difficult for you to take notes or remember all the jurors' responses. Have someone else observe voir dire and take notes. Law clerks, legal assistants, and secretaries are adept at taking copious notes, their time is less expensive than trial consultants or other attorneys, and they will be knowledgeable about the important issues in your case. Also, the jurors will not be offended that these people are taking notes if you explain that they wanted the opportunity to observe real courtroom proceedings.
Attorneys are programmed to fight for their clients, but this propensity is counterproductive in voir dire. Do not argue with prospective jurors, cross-examine them, or try to lead them to the "correct" answers. This stifles candor in the jurors and will prevent you from uncovering their true opinions and potential biases.
If a juror's answers are in opposition to your case, thank the juror for being honest and follow up with questions about why he or she has those beliefs and whether the beliefs will affect the juror's ability to consider the case impartially. Then ask the other panel members how many of them share those beliefs.
When questioning a potential juror whom the defendant might consider too favorable to your case, take steps to inoculate him or her from a challenge for cause. Recognize the juror's sympathy for the plaintiff, but obtain a promise that he or she will follow the judge's instructions and the law and listen to the evidence before making a decision.
You must also be ready to make necessary Batson challenges after all peremptory challenges have been made. In Batson v. Kentucky, the U.S. Supreme Court ruled that the state could not exercise its peremptory challenges to exclude members of racial minorities from juries in criminal cases.(11) In J.E.B. v. Alabama, the Court extended its holding to prohibit discriminatory strikes based on sex,(12) and in Edmonson v. Leesville Concrete Co., the Court held that the principles announced in Batson apply in civil cases.(13)
Given the nature of employment cases, especially when they involve claims of discrimination based on gender, race, or ethnic origin, you may need to make Batson challenges if opposing counsel strikes a woman or a member of a minority group in a manner that could be discriminatory. These jurors are often supportive of plaintiffs in these cases.
It is always difficult to find fair jurors, but in employment cases, ferreting out bias is especially challenging. It can be done through a well-conceived and carefully prepared series of questions designed to expose what jurors really think and feel as opposed to what they believe they should think and feel.
(1.) See Irvin v. Dowd, 366 U.S. 717, 728 (1961).
(2.) United States v. Colabella, 448 F.2d 1299, 1304 (2d Cir. 1971).
(3.) 5A JAMES WILLIAM MOORE, FEDERAL PRACTICE [paragraph] 47.06 (2d ed. 1996).
(4.) See, e.g., Fietzer v. Ford Motor Co., 622 F.2d 281, 284 (7th Cir. 1980); Kiernan v. Van Schaik, 347 F.2d 775, 779 (3d Cir. 1965).
(5.) Mu'min v. Virginia, 500 U.S. 415, 431 (1991); see also McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1983).
(6.) See, e.g., Sutherlin v. Fenenga, 810 P.2d 353, 362 (N.M. Ct. App. 1991); Babcock v. Northwest Mem'l Hosp., 767 S.W.2d 705, 709 (Tex. 1989); Evans v. Doty, 824 P.2d 460, 467 (Utah Ct. App. 1992); see also Roman v. Mitchell, 413 A.2d 322,329 (N.J. 1980) (Pashman, J., dissenting).
(7.) See United States v. Harvey, 756 F.2d 636, 640 (8th Cir. 1985).
(8.) Cohn v. Julien, 574 So. 2d 1202 (Fla. Dist. Ct. App. 1991) (finding that restricting plaintiffs counsel to 15 minutes for voir dire in complex negligence case was unreasonable).
(9.) 549 F.2d 990, 993 (5th Cir. 1977).
(11.) 476 U.S. 79, 86 (1986).
(12.) 511 U.S. 127 (1994).
(13.) 500 U.S. 614 (1991).
Roxanne Barton Conlin, a former ATLA president, practices in Des Moines. Gretchen Jensen is a partner in the law firm of Jensen & Meyer in Des Moines.