The vanishing jury trial is perhaps one of the most important issues facing the civil justice system today.  Civil trials have declined in federal courts from 12% in 1984 to less than 1% in 2010.  Statistics from state courts, though more difficult to obtain, generally show the same trends.  The issue has been widely studied, and while the fact of the vanishing trial is clear, the reasons for the decline are less obvious.  Several theories have been advanced, ranging from a dramatic rise in case filings and underfunded court systems to the ever increasing cost of litigation and the success of alternative dispute resolution.  

Following an established trend of researching social media in jury selection, this article from Law.com raises a few pitfalls of using this method of researching jurors.  First, it recognizes that jurors who use social media will probably have their privacy settings so that their information is not publically accessible-– a good practice for everyone.  If that is the case, then no one should have special access to it just for the purpose of jury selection. 

Second, the article points out that a juror could purposely alter their profile to get out of jury duty.  On one hand, it would be easy to assume a juror could just as easily mislead someone when asked direct questions during voir dire as they could online.  However, people are generally more candid and honest when they are asked questions face-to-face in a courtroom.  They are more likely to mis-lead behind the false façade of social media than they are in person.  Caveat emptor should be the rule for attorneys in using social media in jury selection.  Any information discovered about a potential juror’s biases is only as good as the source.

In Massachusetts, counsel are permitted to challenge potential jurors for cause.  In addition, each side is permitted to dismiss a specified number of jurors without stating a reason.  This practice, called peremptory challenges, has come under increasing scrutiny in Massachusetts.  I recently read an article in Massachusetts Lawyers Weekly entitled Is it Time for Peremptory Challenges to Go?  The concern raised by this article is that certain challenges are discriminatory or based on unethical motives.  So is the answer to abolish them completely or to place tighter restrictions on them?

As a trial lawyer, I have seen the value of peremptory challenges.  Such challenges allows you to strike potential jurors who simply do not want to be there and have been unsuccessful in their attempts to be excused from service; and it allows you to strike jurors who, based on the juror questionnaire, do not appear likely to be impartial and yet are not removed for cause.  If left on the jury panel, will these jurors sit attentively during the trial and listen to all the evidence?  As a defense counsel, I am particularly concerned about a juror who does not want to be serving, particularly since the plaintiff goes first.  Similarly, is a juror who has filed numerous lawsuits including one against his dry cleaner because his shirts were not properly pressed, likely to be impartial in the case against your corporate client?  While I agree that there is no room for discrimination or unethical conduct in the exercise of peremptory challenges, I feel that they play a valid role in insuring a fair trial for all parties. 

Conventional wisdom has it that a “good” voir dire is equal parts of (1) rapport-building; (2) information gathering; and (3) conditioning (or information providing).

Questionnaires
The threshold source of information on each juror is, of course, the jury questionnaire. In some counties, one can expect the questionnaires to be delivered with the jurors, and there is a flurry of activity as counsel whip through the papers with a highlighter to try to identify the demographic factors which reflect the attorney’s own biases as to what makes a “good” or “bad” juror for any particular case. In other counties, one may be able to arrange to receive a packet of jury questionnaires as much as a week before the trial. The questionnaires often provide a good deal of information: age, marital status, occupational history, prior jury experience, and information regarding prior accidents, claims and litigation.

Rapport-Building
Rapport-Building is not a separate segment of the jury selection process, but begins with everything you do and say to create a good impression with the jury. It starts with how you dress yourself and your client; how you, as counsel, and your client present yourselves to the jury; and continues with everything you say and do in the context of the trial. Jury selection is your only chance to make a good first impression.

I deliberately downplay any suggestion that I will pry into the jurors’ “biases” or “prejudices,” and instead invite them to discuss with me any “preconceived ideas” or “notions” which they may have brought to the courtroom. I like to tell them that there is nothing at all wrong with having preconceived ideas – it may simply mean that they are not the best jurors to hear a particular case.

The way we ask questions of jurors will affect their perception of each of us as lawyers, and inevitably will reflect upon our clients, as well. The questioning must necessarily be as polite as possible, and our responses to even adverse commentary from the jurors need to be met with outward appreciation and polite closure. A potential juror may have just told you that he or she does not think much of lawyers, in general, and lawyers who represent clients like yours, in particular; and the real challenge is to say (sincerely): “Thank you for your candor, Mr. Brown.”

Procedurally, I prefer to begin by asking general questions of the venire, which are more in the nature of “conditioning” or “information providing,” asking for specific responses by a show of hands, and will then make sure that I have the opportunity to speak individually with each juror, either focusing on information provided by the questionnaire or on general questions which might assist me in determining whether or not the juror is appropriate for striking. During that entire process, however, the most important thing is to be self-deprecating, polite, and as empathetic as possible, so that the jurors will not dislike you more than opposing counsel.

Conditioning
I have a series of “stock” questions which I tend to ask of jurors as a group, each of which is intended to prepare them for service as jurors. If defending, for example, I will often ask if anyone has “already” decided how the case is likely to turn out, based on the questions posed by plaintiff’s attorney? I follow that with questions intended to communicate the difficulty I have as defense counsel in “following” the plaintiff’s counsel, who always “goes first.”

If there are “bad facts” that you know will likely be offered into evidence, try to condition the jurors to hear those bad facts by discussing them in general terms in voir dire. Voir dire is also an opportunity to discuss “good facts,” and if there are jurors who are empathetic to your client or the situation at issue, you may be able to draw out favorable information from the potential jurors that will effectively communicate arguments that you would not be free to pose yourself in the context of jury selection.

Information Gathering
Here is where many trial lawyers go awry. I often see attorneys working hard to identify the jurors they believe will be helpful to their case. The result, of course, is that they have helped me identify jurors who I believe should be stricken. The key is to remember that your mission is to “de-select” jurors who are less likely than others to decide the case favorably to your client.
 
A useful exercise to prepare for jury selection is to outline the qualities of the jurors you want and don’t want, and then make sure your questions are designed to elicit responses from the jurors you do not want. A question that is too “balanced” may help your opponent identify the jurors you would otherwise want, so the trick is to design questions that are more likely to help you in your jury selection than to help your opponent in hers.

Purely as a matter of courtesy and rapport-building, the lawyers should work to end each conversation with an individual juror in such a way that neither the juror nor his fellow jurors feel that you have any disrespect for the juror’s views, or for the juror as a person, as a result of his or her candor. You can thank the juror for being frank, make sure that you have come to “closure” with the juror, and move on, without necessarily validating the juror’s views.

Juror Disqualification
Any fool can exercise a peremptory challenge, but the real art in jury selection is persuading the judge to excuse “for cause” a juror whom you feel ought to be disqualified from hearing your case. I try to have the juror agree that it would be difficult for them to consider a case such as the one which has been described to them, or commit to an agreement that they would not want a juror with their notions or preconceived ideas considering this case if they were in the shoes of my client. I typically turn to the judge and “ask that Ms. Doe be excused for cause, given her concerns about her ability to be fair to my client.” I shudder whenever I hear a lawyer turn to the judge and ask “that juror number 5 be stricken for cause,” as it gives all of the jurors the impression that the bailiff might just unholster his pistol and take care of the matter on the spot. Even assuming the challenge for cause is sustained, that attorney has likely made it difficult to obtain candid responses from the “surviving” jurors.

Conclusion
These precepts are not easy to master, but lawyers who have these techniques firmly in hand can be confident that they are taking fullest advantage of their one chance to make a good first impression upon the jurors who will decide their cases.

Robert B. Clemens
Bose McKinney & Evans
Indianapolis, Indiana
rclemens@boselaw.com