Voir dire dynamics in large trials with large panels: Is more really merrier?
As lead counsel, you have worked the case all the way through discovery and dispositive motions to get it ready for presentation to a jury. There is an unusually large amount in controversy, and the judge has made it clear to all parties that your case has a high profile in the community in which it will be tried. Media coverage of the trial is a given. Everyone agrees the trial will take at least two weeks to complete. Both sides have worked with consultants to prepare a detailed Juror Questionnaire to be completed in advance of voir dire. As a result of these dynamics, in order to ensure both sides can seat a 12 member jury with four alternates, the court announces that a panel of 125 people will be brought up from the central jury room for voir dire. The court also announces that, because only one room in the entire courthouse is big enough to accommodate such a panel, that is where the voir dire will take place.
Picking a jury from a panel of 36 people is challenging enough, but how does this process change when the voir dire panel is increased three or four times in number? What dynamics are in play that may yield an advantage to the experienced trial counsel? What pitfalls and traps lie waiting for counsel in the large ceremonial courtroom where the voir dire will take place? When it comes to selecting a jury from such a large venire panel, it is important to understand how the larger panel, and even the larger room in which the voir dire takes place will affect the dynamics of this critically important process.
First, you should never lose sight of the first 36 people on the panel. Unless an inordinate number of people are disqualified for cause, the truth remains that you may not go too far past the first 36 panelists in seating a jury. But even if this proves true, what do you do about the remaining 89 people in the room? Take a close look at the responses to your Juror Questionnaire. In a group of 125 people, there may be certain individuals that have a very favorable view of your client, but they are so far back in number they may never get reached. You can ask them to stand up and note that, for example, they report that their uncle has long worked for your client and their family is very grateful for the provision of his livelihood all these years. Surely, this would not prevent them from reviewing only the evidence presented and following the court's instructions in rendering a fair verdict? This person may never see the jury room in your case, but they can help you remind the rest of the panel that your client provides jobs and supports families all over the community. In this way, you can use the folks "in the back of the room" to help soften or personalize your corporate client and to underscore the value they bring to the community.
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Second, perhaps there are a few folks in the back of the room that have something quite negative to say about your opponent in the Juror Questionnaire. If so, a few open-ended questions about your opponent may bring these concerns to the larger group. As the venire candidate stands and expresses his concerns about your corporate opponent, he will almost have to yell over the rest of the venire panel so that the judge and counsel located in the front of the large courtroom may hear his comments. This can educate the people in the first 36 seats about certain of your opponent's negatives in a way that allows counsel to avoid delivering the bad news and appearing to be argumentative.
Third, listen to what the panelists say, even if they are not selected for jury service in the case. In a large voir dire involving opposing Texas and Florida companies, venire panelist number 96 referenced a "Texas Praline" in a comment many of his fellow panelists found to be humorous. Later, during the actual trial, one of the key witnesses for the Texas litigant worked the "Texas Praline" into his testimony and the jury instantly started laughing. Although many observers who did not attend the voir dire failed to get the inside joke, the Texas witness forever endeared himself to the jury.
Fourth, be aware of the time of year and assume the large ceremonial courtroom is rarely used if it is not assigned to a sitting judge. Putting that many people into a single room is going to generate a certain amount of heat that the building's air conditioning may not be able to remedy. You may need to ask the court in advance to take an occasional break if you see people fanning themselves with whatever they have handy.
Finally, work with the court and opposing counsel to create an instruction to be read at the end of voir dire and at the end of each day of trial that makes clear the jury is to avoid social media, web browsers and all local media until the trial concludes. Counsel should make an affirmative effort to influence the substance of this instruction as some courts tend to improvise and sometimes even have the unintended effect of piquing the jury's interest to see what is out there on the web.
Selecting a jury from a panel of 125 people is not likely on all but the higher profile and media intensive trials. Still, before you walk into a room with 125 venire panelists, make sure you carefully think through the changed dynamics of your voir dire presentation under what will be very different conditions from jury selection in a "garden variety" case.