By Susan Macpherson
Judges tell prospective jurors: “All we really need to know is whether you can be fair and impartial.” But prospective jurors are often not told what they will have to be fair and impartial about. When jurors don’t know what the case is about or what they will be asked to decide, their answers to the most basic question in jury selection may not be very reliable. Yet there are very few jurors who have the nerve or the self- awareness to give the response that I recently heard from the back row of the jury box: “Depends on what you guys got for me to decide!” When jurors are told it is a criminal charge, such as possession of a controlled substance, they can make some assumptions as to what the case is about and consider whether they have any relevant experiences or opinions. When jurors are told it is a civil case involving a claim like “tortious interference” or “a violation of the Sherman Act” or “misappropriation of trade secrets” that generally means nothing to them and certainly reveals nothing about the issues that might trigger a predisposition to favor one side. Having each attorney present a mini-opening early in jury selection provides a simple solution to this problem.
A mini-opening is a brief statement – usually in the range of 5-7 minutes – that describes the context of the dispute, provides a quick overview of the key issues in the case, and gives a “50,000 foot” description of what the jurors will be asked to decide. The basic concept is quite simple: when jurors are given a coherent statement about the case at the outset of voir dire they can do a better job of identifying the issues that may make it difficult for them to be impartial and of revealing any prior attitudes or experiences related to the specific issues in dispute. The objective in the mini-opening is not for counsel to tell the jurors “this is why we are right” but rather “this is why we are here; this is what the jury will be dealing with.” As a result, the follow-up voir dire is more efficient and effective because prospective jurors have a better understanding of why the questions are being asked, and they can do a better job of anticipating what the lawyers and the judge need to know about their opinions and experiences.