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Let jurors speak the truth, in writing: some jurors aren't fully candid during oral voir dire. When you hand them a supplemental juror questionnaire and a pen, many will feel free to open up.

As voir dire becomes more limited, attorneys must become savvier about eliciting information from jurors. One way to maximize voir dire is to use supplemental juror questionnaires. These are case-specific surveys--used in addition to your jurisdiction's basic demographic questionnaire--that jurors complete before jury selection. Counsel for both sides usually work together to propose using them and choose the questions.

Written questionnaires offer many advantages over oral voir dire alone. For example, they give jurors more time to think about their answers, making it more likely they will respond in greater detail. Jurors are also more likely to give their own opinions and not just echo sentiments they've heard other jurors express. Most important, everyone "talks." No juror can hide behind speech fright or choose to remain silent. You will learn something about each juror. Compare that to how often you now seat jurors whom you've never heard speak in voir dire.

You will often get more candid responses with a questionnaire because the process respects the jurors' privacy. They can disclose sensitive information--such as their experiences with psychologists or psychiatrists, alcohol use or abuse, or personal traumas like rape, job loss, or the death of a child--without revealing it to the rest of the panel.

Jurors will appreciate being allowed to designate certain questions as sensitive. For example, the questionnaire's cover sheet may say, "If there is anything you do not want to talk about in open court, please circle the number of that question and then tell the clerk that you have circled one or more question numbers." You can follow up on these sensitive areas in private sessions with individual jurors. This questioning can be completed quickly if limited to designated sensitive areas.

Jurors are also more likely to acknowledge socially unacceptable attitudes and opinions in a questionnaire. For example, they may hesitate to voice racial or ethnic prejudice in oral voir dire, but on your carefully designed questionnaire they may subtly reveal some bias.

A primary reason to use supplemental juror questionnaires is to shorten the jury selection process, so don't defeat this advantage by being repetitive. Plan your voir dire as you write the questionnaire, and leave some areas to cover exclusively in oral questioning. Also, carefully consider follow-up questions and remember that most topics will not need any. For example, generally you would not probe jurors' responses about previous jobs or volunteer activities.

You may be able to determine some cause challenges before oral voir dire based on the jurors' written responses alone. This saves the court time and lessens the risk that any juror's extreme opinions could contaminate the rest of the panel. Many jurors hold strong opinions, both pro and con, about such issues as attorney advertising and damages caps. A questionnaire minimizes the risk of contamination and prevents jurors from echoing radical responses in order to get dismissed from jury service.

Realistically, it is not reasonable or necessary to have a questionnaire in every case. Request questionnaires in cases where, for example, you will need to ask about particularly sensitive case-related experiences, both you and the opposition see the need for a questionnaire, the media have covered the case, or a party is well known in the community. The more likely jurors are to have knowledge or opinions about the case or the parties, the more you need a questionnaire. If the local newspaper has publicized the defendant company's denial of wrongdoing, a local television station has reported on obstetricians leaving medicine because of malpractice lawsuits, or you are suing the largest employer in the county, you will need a questionnaire.

In some jurisdictions, these questionnaires are commonplace, so an oral motion for using one may suffice. This is particularly true if your jurisdiction has adopted local or state rules for using them. More often, you will need to educate the judge, and perhaps even opposing counsel, about the advantages of a questionnaire and how to administer it. It helps to submit a proposed questionnaire with your motion.

Preparing questions

Keep in mind several factors as you draft the questionnaire.

Length matters. Most cases don't require the breadth of the 80-page, 294-question form used in the O. J. Simpson criminal case. In most jurisdictions, the average jury questionnaire in civil cases is 5 pages or less.

It makes good sense to keep questionnaires compact. Jurors--and judges--are turned off by lengthy or repetitive questionnaires. Long questionnaires also get in the way of effectively summarizing and using the data, especially if you have only a short time between receiving jurors' responses and beginning oral voir dire. The trend is toward briefer questionnaires that home in on salient issues. The sample questionnaire on page 66 fits on a single page.

This is not a solo endeavor. The judge is more likely to allow a questionnaire if both sides request one. You must be prepared to work with opposing counsel and compromise on the questions for the final version. Fight for the questions you really want, but be willing to negotiate. Compromising with opposing counsel may be better than letting the judge take over writing the questions.

Take the first shot at drafting. In my experience, few defense lawyers want to reinvent the wheel, so your proposed draft will probably be accepted as a basis for discussion and compromise. Include neutrally worded questions that do not load the questionnaire in your client's favor. But don't be reluctant to prepare questions that address your specific concerns; hold out for inclusion of at least some of them in the final version.

Choose a user-friendly format. For example, select an easy-to-read and easy-to-tabulate design for multiple-choice questions.

Limit demographic questions. If jurors have completed a standard court questionnaire, or if the judge has a format for getting their basic demographic information--such as age, education, and prior jury service--at the beginning of oral voir dire, don't repeat those questions in the supplemental questionnaire. Substitute questions on jurors' attitudes, opinions, and experiences that are directly relevant to the case.

Keep your questionnaire neutral. Supplemental juror questionnaires have received wide acceptance because they serve the interests of justice; they are designed to elicit pertinent information about case-specific issues and not to put a persuasive "spin" on the case. Attempts to deviate from information-gathering to persuading are likely to face opposition from the other side and provoke the judge's disfavor.

Include both open-ended and forced-choice questions. In responding to open-ended questions, potential jurors may employ vivid language that you can use to develop follow-up questions or support a challenge for cause. Open-ended questions also help you evaluate jurors' literacy.

But forced-choice questions are useful because they can be analyzed quickly. This is important when you don't have a lot of time to spend with the questionnaires before oral voir dire. Also, in their answers to a series of forced-choice questions, jurors may betray prejudice that does not show up in their open-ended responses.

For instance, to assess how jurors feel about claims of sex discrimination, you might ask them, "What do you think about sex discrimination lawsuits?" Chances are you would gain little useful information from this. You might learn much more from forced-choice questions directly applicable to the facts of your case. For example, ask jurors to rate how strongly they agree or disagree with these concepts: "A person has more of a right to be compensated for a physical injury like a broken arm than for an emotional injury such as experiencing stress and anxiety" or "If a woman wants to, she can stop a man from sexually harassing her."

Resist using yes/no or simple agree/disagree questions. If you ask, for example, whether the juror agrees or disagrees with the statement "Punitive damages should never be awarded against doctors or hospitals," he or she may have difficulty choosing between the two options. Instead, consider asking jurors to rate their agreement on a scale of 1 to 5 (with 1 indicating "strongly agree" and 5 "strongly disagree"). Jurors who choose the antiplaintiff extremes are of most interest to you.

Scaled agreement questions are not meant to be used in isolation, but rather in a series where you can begin to ascertain how strongly potential jurors hold certain opinions. For example, to gauge jurors' attitudes toward damages, you might follow the scaled question on punitive damages with these: "We should pass laws to limit the amount of money a jury can award in lawsuits against doctors and hospitals" and "Medical malpractice lawsuits are driving up the cost of health care for us all."

Also consider using multi-option questions like this one: "If a child is seriously and permanently injured because of the negligence of another, could you award money damages for each of the following? That is, are you philosophically in favor of or opposed to awarding money compensation for each of the following types of damages?"

Follow the question with a list of damages elements, such as medical expenses, pain and suffering, loss of enjoyment of life, the parents' emotional distress, and lost earnings the child will experience after age 18. After each element, jurors will indicate whether they "could award," "feel hesitant about awarding," or "could not award" this type of damages. Conclude the question with "If you answered 'feel hesitant about awarding' or 'could not award' to any of the above, please explain why."

Ask about damages and litigation "crisis" attitudes. Too often attorneys focus on experiences and attitudes toward liability and forget to ask questions, like the one above, about potential jurors' attitudes toward damages. Or the defense contests damages questions, and the plaintiff does not push for their inclusion. Supplemental juror questionnaires are your best opportunity to learn about attitudes toward noneconomic damages, punitive damages, and caps on damages generally.

Why ask if jurors believe there is a litigation "crisis"? Researchers have found that the more strongly jurors believe there is one, the less likely they are to award damages. (1) These researchers postulate that concerns about litigation shape jurors' views of the legitimacy of plaintiffs' claims and the potential effects of verdicts on society.

Other researchers have found a similar correlation between jurors' tort "reform" attitudes and damages awards: Jurors who favor tort "reform" return lower verdicts. (2) These researchers based their findings on whether jurors agreed with certain attitudinal statements:

* There are too many lawsuits.

* The insurance industry is not experiencing a crisis because of large jury awards.

* I would use the amount the lawyers suggest as a starting point, then add more to arrive at a reasonable amount.

* No one deserves more than a million dollars in damages.

In addition, these researchers found that jurors who believed that million-dollar awards are common tended to award less money.

Finally, we know that when a particular attitude involves a person's self-interest, he or she is more likely to act on that self-interest. (3) For example, jurors who are concerned about rising insurance rates or the likelihood of being sued are more likely to vote for lower damages.

Logistics

Questionnaires demand a balance between design and practicality. You can write all sorts of wonderful questions, but if you do not have the time to analyze the jurors' responses, a simple way to reproduce the completed questionnaires, or a system for integrating the information into the jury selection process, then you have substantially diminished their value.

Review time. Questionnaires are only as valuable as the time you have to review them, make preliminary assessments about cause, assign initial juror ratings, and formulate follow-up voir dire.

With a panel of 40 to 50 potential jurors, it is preferable to have an evening to review even one- to three-page questionnaires. Sometimes this is not possible, but the judge may agree to administer a questionnaire first thing in the morning and have jurors return after lunch. This could give your staff or trial consultant three or four hours to summarize the information while you are arguing pretrial motions. The best solution is to ask the court to mail questionnaires in advance so prospective jurors can complete and send them back to the court before the trial date.

Costs. To reduce the costs to the court, the party who requests the questionnaire usually offers to supply pens and arrange to have copies of the questionnaire for each panel member. You may offer to make the copies yourself or to pay to have them made at a copy center. Some courts prefer to have the jury clerk's office or the judge's staff make the copies and will cover the expenses. Usually the parties share the costs of copying and postage if the questionnaire is mailed. With a short questionnaire, consider using carbon-press copies. By printing the questionnaires on the special carbon paper, you get an original and two copies of the jurors' responses.

Analysis

Once you get the completed questionnaires back from jurors, your goals are simple.

Assess which jurors you are going to challenge for came. Questionnaires can be vitally important for establishing cause. Sometimes a juror's connections to litigants or strong prejudicial responses to attitudinal questions are significant enough that the judge rules on cause without the need to conduct additional voir dire.

Usually, though, judges do not make cause rulings based only on a questionnaire. Even so, questionnaires can help you spot jurors who are likely biased, determine fruitful areas for follow-up questioning, and build your overall argument for why a particular juror should be dismissed.

Because getting prejudiced jurors removed is so important, put determining cause at the top of your list of things to learn from the questionnaires. If you have time to read each questionnaire only once, put a colored tag on each response that needs to be pursued for cause. Then focus a substantial part of your oral voir dire on these jurors and their responses.

If you have time for a lengthier review, you'll likely find that the cause concerns you initially marked are still the most significant areas for follow-up.

Assign a preliminary rating for each juror. Do you keep or strike this juror? Generally you will learn more about each juror from a written questionnaire than you would from oral voir dire alone.

Some attorneys choose to simply mark each juror as a "strike" or "keep" based on questionnaire responses. Other attorneys feel comfortable with a more extensive rating scale, for example: 1 = very positive; 2 = generally positive; 3 = mixed, about equally positive and negative; 4 = generally negative; 5 = very negative.

Also consider assigning a leadership rating for each juror. How strong a leader is this person? Is he or she: 1 = very strong; 2 = strong; 3 = somewhat strong; 4 = unlikely to lead, a follower; 5 = isolated, a loner?

If there is time, prepare an individual summary sheet for each juror. It is useful to have a sheet for each juror that includes a summary of demographic data (even if comes from the court's basic questionnaire), responses that relate to cause concerns, other areas for voir dire follow-up, and your rating scales. Summary sheets generally use shorthand and abbreviations--for example, "Emp" is employment; "Sp Emp" is spouse's employment; "Edu" is education.

Summary sheets can become a record of the jurors' transit through the jury selection process. If supplemental questionnaires are completed before jurors are assigned seats, then you should include the "original juror number" as well as the "seat number." See the sample summary sheet on page 67.

Supplemental juror questionnaires can help you make the most of voir dire, but only if you make them succinct and relevant, analyze the data quickly, and integrate the information with your oral voir dire.

Notes

(1.) Valerie P. Hans & William S. Lofquist, Jurors' Judgments of Business Liability in Tort Cases: Implications for the Litigation Explosion Debate, 26 LAW & SOC'Y REV. 85 (1992).

(2.) Edith Greene et al., Jurors' Attitudes About Civil Litigation and the Size of Damage Awards, 40 AM. U. L. REV. 805 (1991).

(3.) John M. Sivacek & William D. Crano, Vested Interest as a Moderator of Attitude-Behavior Consistency, 43 J. PERSONALITY & SOC. PSYCHOL. 210 (1982).

Sample single-page questionnaire

The following supplemental juror questionnaire is for a case involving underage drinking. John Jones, age 17, invited three friends over to watch TV. That morning, John's mother had purchased a 12-pack of beer. She was home that evening and knew the boys drank the beer. She did not know whether the other boys' parents allowed them to drink alcohol. At 10 p.m., John told his mother they were leaving to walk to another boy's house. Instead, John drove his car. Mike Smith, who was in the front passenger seat, was killed when the car veered off the road and hit a tree.
CONFIDENTIAL--To be used only for this jury trial.
You are under oath to answer each of the following questions
truthfully:

Juror Number: --
juror Name (printed):

Have you experienced the death of a child?
--Yes --No
IF YES: Cause of death?

Date of death?

How do you feel about serving on a jury
where parents are suing for the death of
their child?

How many times a month do you have some
type of alcoholic drink?

As an underage teenager:
 * Did you drink alcohol?
 --Yes --No
 * Did your parents know?
 --Yes --No
 * Did your parents let you drink in their
 presence? --Yes --No

CIRCLE THE NUMBER THAT COMES
CLOSEST TO YOUR OPINION:

Most people today are unwilling to accept
responsibility for their own actions.

 1 2 3 4 5
Strongly Strongly
 Agree Disagree

Have you or anyone close to you been in a
motor vehicle collision where someone was
seriously injured or killed? --Yes --No
IF YES: What happened?

Have you ever worked in any job where you
served or sold alcohol? --Yes --No
IF YES: Please describe.

Have you or anyone close to you ever had a
drinking problem? --Yes --No
IF YES:
 * Is this you, a family member,
 or--a friend?
 * Is this person in recovery,
 --Yes --No

If you are currently raising teenagers or you
have raised teenagers, do you or did you allow
your teenagers to drink before they were of
legal age? --Yes --No

Do you favor laws that would limit the amount
of money a jury could award in lawsuits
where someone has been injured or killed?

 1 2 3 4 5
Strongly Strongly
 Agree Disagree

Have you ever been injured--or has anyone
close to you ever been injured or killed--
because you/they/someone else was drinking
alcohol? --Yes --No
IF YES: Please explain.

What are your feelings about driving after
having one or two drinks?

Have you ever been:
 * Stopped for suspicion of driving
 under the influence? --Yes --No
 * Given a field sobriety test? --Yes --No
 * Arrested for driving under the influence
 of drugs or alcohol? --Yes --No

Have you ever been a passenger in a vehicle
driven by an intoxicated driver?
--Yes --No
IF YES: Please explain.

The law spells out the types of things that
jurors must consider in placing a value on
the lost life of a child. One of these elements
is the child's lost potential earning
capacity. How do you feel about parents' receiving
money damages for 40 or more
years of wages their child might have
earned?

 1 2 3 4 5
Strongly Strongly
 Agree Disagree

Sample Summary Sheet

Bio: Female, age 37
Married, 2 teenagers
Emp = Assistant principal Apple Valley Middle School for 2 years
Sp Emp = Recently retired USAF; temporarily employed as a diesel tech
Edu = BA, MA: history, special edu, school administration
Crime victim = raped in 1990
Plaintiff for whiplash when her car was rear-ended at a stop sign

Cause Issues:

"Alcohol has become a problem in my school."

"At least one day each week I have to deal with a student who has come
to school drunk."

"Parents have relinquished authority. It's time they got involved in
their kids' lives and didn't leave all the disciplining to the
schools."

Additional Voir Dire Follow-up:

"My parents allowed me to drink a glass of wine at dinner in our
home from the time I was age 16."

Rating: 1 = Very positive
 2 = Generally positive
 3 = Mixed--about equally positive and negative
 X 4 = Generally negative
 5 = Very negative

Leadership: X 1 = Very strong
 2 = Strong
 3 = Somewhat strong
 4 = Unlikely to lead/a follower
 5 = Isolated/a loner

Decision: X Strike
 Strike if possible
 Keep

Comments: Admits that she has already allowed her teenagers to drink
alcohol at home.


LIN S. LILLEY is a trial consultant in Austin, Texas.
COPYRIGHT 2005 American Association for Justice
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2005, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Date:Jul 1, 2005
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