Summer's over. It's time to refocus, and if the recent search traffic here is any indication, it's time to get ready for trial. Judges are back on the bench today, and a lot of this blog's readers spent some time yesterday researching their voir dire questions.
Which brings up a question I'm asked often. We're getting an idea of what voir dire questions to ask, readers tell me, but what do we do with the answers? We know we're supposed to get jurors talking and then listen, but what are we listening for?
I've been pretty clear about what I'm usually not listening for in voir dire. I set very little store by demographics, and I don't trust bias questions to bring out jurors' secret or unconscious biases. But I do have a list of the main things I'm listening for, the things I'm usually trying to figure out in voir dire. I use it both as a checklist to develop questions, and as a reminder of what I'm looking for as I listen. I keep tinkering with this list, but here's the version I'm using right now.
1. Ability to serve. Can this juror see, hear, and speak English sufficiently to participate? Caught up in more substantive voir dire goals, lawyers can fail to strike a juror who simply cannot hear them.
2. Preconceptions. Does this juror have preconceptions about any aspect of this case? Ask directly, yes, but more important, look for experiences and behaviors, as I've written before.
3. Math. Can this juror do math? Unless it is a job requirement or the juror has had significant education in a field that uses numbers, you cannot assume the juror can perform mathematical calculations that seem elementary to you, even on a calculator. A jury with typical math skills can easily return a verdict they did not intend because no one knew how to calculate percentages, or interest accrual.
4. Leadership. Will this juror lead others, or follow them? Look for:
- Relevant knowledge. Anyone experienced or knowledgeable in relevant subjects will be looked to by other jurors as an expert, whether or not he or she is otherwise a natural leader.
- Employment and experience. Lawyers, others involved in the legal system, and teachers will almost inevitably be strong leaders.
- Age, sex, social class, education, and personality. Here, demographics do have meaning, at least to me. Over and over in mock trials, middle-aged male business managers tend to be jury leaders, while young blue-collar women and elderly women tend to be very quiet, and everyone else falls on the continuum between. Ask questions to seek out leadership roles at work and in personal activities.
5. Affinity. Will this juror like me, my client, and my important witnesses? Look for:
- Personal chemistry.
- Demographic similarity and similar "life story."
- Behaviors, especially those chosen or avoided because they speak "for" or "against" entities like your client. If you represent a large national chain company, people who avoid shopping at Wal-Mart or drinking Starbucks coffee may not be your jurors.
6. Sense of control. Does this juror tend to believe that others and external forces control life events, or that people control their own destiny? Look for:
- Prior complaints. Ask questions to elicit all prior lawsuits, employment complaints, complaints to the Better Business Bureau, even insurance claims. If the judge would let you ask whether the juror sends back food at restaurants, you would want to know. Likewise jurors who have been sued, or have had complaints lodged against them, tend to feel very strongly about those who complain rather than taking responsibility.
- Explanation for prior failures. How does the juror explain business failures, firings, and similar events, in her own life and that of friends and relatives? Was the juror's job eliminated by foreign competition or a vindictive boss, or did she simply move on? Obviously these questions need to be asked very respectfully.
- Supervisory and decision-making roles at work. Supervisors often need to believe in personal responsibility and control just to perform their function. In addition, they have more opportunities to control their work day, so they experience more personal autonomy and assume others do as well.
- Entrepreneurship, business ownership, and "self-made" success.
- Future plans and expectations. Jurors with a high sense of responsibility and control may display that in describing their expected future.
- Age. Some demographers suggest there is a typical "Generation X" juror who tends to believe each person is responsible for himself and should just move on if things don't work out.
- Physical strength or frailty. A physically frail person can feel much more vulnerable to external forces of all kinds than a physically vital person would.
7. Story vs. process orientation. Is this juror more oriented to the parties' "stories," or to the elements of legal claims and defenses? Look for:
- Style of expression. "Story jurors," as I call them, often answer questions with a story. "Process jurors" usually speak more precisely and answer the question posed more narrowly.
- Profession. People involved in sales, marketing, teaching, and counseling often use stories and narrative as their main professional tool. Accountants, engineers, doctors, and computer programmers use a clear process in their work. (If this is difficult, ask yourself whether you would want to defend a deposition of the juror. If you'd be exhausted at the end of the day, I bet that's a story juror.)
8. Identification with status quo. Does this juror feel she is a part of the "system," or estranged from the "system"? Look for:
- Work experience. An extreme "system juror" might be one who had spent a long career working successfully within a large organization. An extremely "estranged" juror might avoid long-term employment and have a succession of disconnected jobs.
- Affiliation with institutions. Strong connections to church, marriage, government, and other institutions make us feel more part of established society. The weaker those affiliations, especially if the juror actively works in some way against those institutions, the weaker that connection.
9. Willingness to punish. Is this juror likely to punish the side she finds against? This is a disputed topic, but it rings true to me. Look for:
- Recent trauma, especially one creating resentment: a recent death, recent divorce or separation, workplace trauma
- Low sense of control (see the "look fors" on that above)
- Sense that the world been unjust to them: perhaps underemployment, either actual or perceived, or a sense that they did everything right and still lost out
- Sense that injustice can and should be set right: some religious traditions, a social conservative or social liberal, strong self-image as a problem-fixer
- Strong belief in authoritative rules: rigid, dogmatic, unempathetic, intolerant of rulebreakers
- Plain old anger. Sometimes it's easy to pick up unexpressed anger if you're watching for it.
There's no formula as to how all this fits together -- you have to have thought about how these things play in your case, and even then you often won't have easy decisions. People are complicated, and any given group of them trying to work together is a unique moment on the planet. Facing a jury box so full of complexity, it's nice to have a checklist of things that may shape the way they work together, and this is the one I use.
(Photo by Scoo at http://www.flickr.com/photos/[email protected]/385634700/; license details there.)
