ALL THINGS JURY: Some thoughts on voir dire

The jury selection process can be one of the more frustrating and mystifying aspects of trial work. The challenge of selecting a fair and impartial jury panel can be a daunting task in, and of, itself.

The objective of selecting jurors that are "best case" for a particular perspective re: plaintiff or defendant adds many layers of complexity to the task.

However, the trial research process is often full of nuggets that can be successfully utilized for jury selection purposes. This information can be utilized in several ways.

First, in instances when the Court conducts group voir dire, the legal team should submit a short list of questions for consideration that have the objectives of relevance to the trial and dichotomizing attitudes while not giving away anything to opposing counsel. Often, the best tact for these questions is to prioritize "de-selecting" jurors rather than trying to identify "best case" jurors.

More in-depth, and effective, questioning can take place in cases of individual voir dire conducted by counsel. Individual voir dire allows the litigator to probe underlying opinions and attitudes that can be predictive of juror behavior. These questions must be carefully crafted in order to provide directional data while maintaining relevance to the case and not providing the opposing trial team with any insight to preferred, or not preferred, jurors.

The source of voir dire questions are primarily derived from psychographic questions included in mock trial research and community attitude surveys conducted prior to the trial. These learnings can come from jury research conducted in the actual trial venue or a surrogate venue.

Attitudinal questions are much more effective than demographics as a tool to select, and de-select, potential jurors. In fact, a dependence on demographic characteristics by counsel is one of the challenges that jury consultants often face with their clients. While demographics can provide some direction, they are way too general to provide truly valuable jury selection insight.

Lastly, one of the most frustrating questions asked of potential jurors is their self-assessment of their ability to be "fair and impartial". What person would admit they couldn't be fair and impartial? Worse, once potential jurors answer this question affirmatively, they may feel "locked" into it and often discount additional questions that make them reconsider a perspective that makes them question their ability to fair and impartial.

While all trial research work can provide jury selection insight, it is important for jury consultants to help their clients understand that the qualitative findings of focus groups and mock trial research must be quantified through a jury selection survey in order to have significant value to the trial team. By working with a qualified jury consultant, the litigator can bring added relevance to the, sometimes underemphasized, jury selection process.

Samples is president of RRS Research, a communications and opinion research agency headquartered in Charleston. He has extensive crises communications, counseling and litigation research experience and has worked for clients throughout the nation during the last 25 years. RRS Reserach can be contacted at 304.343.7655.

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