A narrative guide to structure voir dire to identify juror bias.
“The jury has the power to bring a verdict in the teeth of both law and fact.”
— Justice Oliver Wendell Holmes, Jr.
“It is not only [the juror’s] right, but his duty…to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
— John Adams
Don’t freak out. But, at trial, justice will be dealt by 12 total strangers. Effective voir dire enables you to identify bad jurors for your client’s case, while simultaneously communicating and gauging receptiveness to trial themes. It also allows you to tap into the bias most of us have for people/corporations/entities that violate the law, cause harm and don’t accept full responsibility.
Approaching voir dire (and your trial) with the goal of overcoming “juror bias” is like saying I want a relationship where there are no arguments. It ain’t gonna happen. In fact, calling it “juror” bias is misleading. It is the specific biases that are within all humans that we are trying to identify. Jurors are like you and me – human beings. As humans, we make snap judgments based on appearance, demeanor, gossip, fear, insecurity, generalizations, bias, or whatever. It may be attributable to survival instincts where early man did not have the luxury of time to analyze if a stranger or animal was friend or foe. It may be because (some say) of Western culture. But, it is what it is and you have to identify it. So, when you realize that with jurors, it is not “us versus them” – then you have a shot at effective voir dire.
Our perceptions are also shaped by our life experiences from childhood until the day we are actually called to jury service. These life experiences are not necessarily rooted in reality but are grounded in our unique assessment of the “facts” as we see them or as we made them up. Sometimes it’s as simple as saying a business owner who has unhappily gone through one or more lawsuits may not be the best juror in a case against a business to not assuming that a juror whose mother suffered a catastrophic injury may be a good juror. While that juror may truly appreciate what your catastrophically-injured client has gone and is going through, her mother may not have received justice in the form of a multi-million dollar verdict and that juror may have a bias against your client getting money. Some biases we don’t even know about until we are asked the right question.
We also all have unique personalities that drive us – whether we like it or not. Have you ever met someone whose existence is meaningless unless there is constant drama? Even if there is no drama, they will unwittingly create it because, like salt on eggs, it is what they grew up with. A jury room filled with 12 drama making machines is not a good thing.
The beauty of this discussion is that – while there are some identifiable individuals who are truly enlightened, have an open mind and recognize when their personality or unique defects get in the way of rational judgment – most of us have biases that run us. So, identifying those biases to de-select (or even select ) the juror is the key to winning the case that should be won.
Here, are some simple rules (not in any particular order) that I follow when structuring voir dire to identify juror bias. (Note: the “I follow” part is because there are many sources available for one to study the art of voir dire and everyone has different approaches.)
Perhaps you have heard the expression “You can catch more flies with honey than with vinegar.” In other words, be nice. Don’t underestimate how powerful a smile can be to get people to open up. Listen more than you speak. Nothing signals to a juror more that you are yet another arrogant “know it all” attorney than not listening or cutting them off. Be interested in what they say.
If you know that you are going to keep a juror, ask them anything about themselves and listen. People love to talk about themselves and they love people who listen to them talk about themselves. Don’t ask something that’s going to get that juror kicked off by the opposing party. But voir dire is your opportunity to connect with the juror you know you are not going to exercise a challenge to.
Embrace the jurors who are vocally opposed to your client’s case or some aspect of it. If someone says that they think it’s wrong to bring a lawsuit for the death of a child, thank them for sharing that thought (bias) with you now rather than in the jury room. Creating an environment where jurors feel safe to share their thoughts with you – even if those thoughts are bad for your client’s case – is key. Then, the other jurors who feel similarly will feel comfortable enough to reveal their thoughts (bias). The notion that bad jurors will poison the other jurors is nonsense. It is not likely that another juror will suddenly change their thoughts/feelings as to whether its right to bring a lawsuit for the death of a child because another juror says it’s “sick” to sue. The exact opposite typically happens. The jurors who think it is important to hold someone accountable for the death of a child will start thinking about and internally/externally defending their personal position on the issue. Remind jurors that the courtroom is a great equalizer where wrongs can be righted, where corporations can be held accountable and where the community gets a voice. Get jurors excited about their ability to right the wrong.
What are the bad facts of your case? All cases have bad facts and during the life of the case you need to continually update your list of them to cover in voir dire. Sometimes, these bad facts have nothing to do with what is admissible or legal, but involve the average Joe’s instinctual question to a story. In other words, it’s not just what you, as the lawyer, think is bad. Remember, we fill in gaps in stories with our own manufactured version of what happened. One, don’t leave any big gaps open in the story and, two, answer questions about the gaps. In a sexual harassment case where the plaintiff was harassed for a 2-year period, don’t ignore the fact that some jurors will be asking (whether right or wrong) why did the person continue to stay at the job? Why didn’t she quit? This question may not be answered during the course of trial. One way to address this issue is to ask if anyone thinks that an employee who is sexually harassed should just quit. While as a matter of law this perception may undermine our basic right to a place of employment that is free of sexual harassment, the juror thinking it does not necessarily know the law or think in terms of the law. So, if 5 prospective jurors say they think the employee should quit, then follow it up with the “What if?” What if the employee continued to work because she had small children to support? What if the employee continued to work because women have a right to work and not be sexually harassed? The “What if?” allows you to test your trial theme and to open the minds of jurors who are hesitant or silent on the issue.
The important issues of the case are those involving money (awarding special damages, general damages, punitive damages, loss of consortium, damages for the death of a child, quantifying damages, damages from public entities, etc.), the right to sue, the standard of proof, following the law or whatever issue the average person may have a difficult time with. If you are asking for a lot of money, get it out into the open so that you can identify those jurors that will tune you out when the word “millions” is mentioned. Again, you don’t want to hear the bias in the form of a defense verdict or low verdict. You want to hear about it before that juror is selected and the only way is to ask. “If the evidence shows that Ms. Smith will require millions of dollars to get the basic medical care she needs, will you hesitate to order the defendant to pay that amount if you find it responsible for the harm to Ms. Smith?” If someone says yes, ask them why. Then follow up by asking other jurors if they share that juror’s thinking and, then, why. For example, one issue that will definitely come up when pursuing a claim against a young driver is how is he or she going to pay. Do not wait for jurors to start discussing that issue in the jury room. Address it up front. “If the defendant driver was working for a large super rich corporation, would you probably order him to pay more money for the death of my client’s son?” “What if you do not hear any evidence as to how rich defendant is … or whether he’s rich, super rich or whatever … will you still order him to pay the same amount for the death of my client’s son?” “Is anyone thinking ‘he’s so young, how is he going to pay’?” “If the law does not base the value of my client’s son’s life on how rich the defendant is, can you promise me that you will not let that – the defendant being young – influence your decision?” If the juror is equivocal, then follow up and set up a challenge for cause.
By the end of voir dire, the jury should have a basic understanding of all of the bad facts and issues that they will be considering during the trial so that there are no surprises.
We humans connect to simple themes – the underdog should win; the love story; safety over profits; accepting responsibility; freedom of speech; freedom from violence; we are all equal; greed is bad; love conquers all; bad medicine hurts us all; accidents don’t just happen; honor in a handshake; driving is a privilege; the simple things in life make life worth living; etc. Themes help you construct a human story, anchor the trial and simplify the facts and law. Test your themes with jurors during voir dire. How do they respond to the themes? One very easy way to test themes is to take the theme and see where in the juror’s work or life experience that theme exists. Again, this approach helps you connect to jurors that you want on your jury.
If you have a case involving bad driving, explore with jurors if they have made a left turn and caused a crash or killed someone. When the only one in the courtroom who has done that is the defendant, then your point is made. If the plaintiff backed out of a driveway without being able to see oncoming traffic because his vision was blocked by parked cars, most jurors will initially think it’s the plaintiff’s fault. As humans we tend to be hypercritical of others and yet we don’t even live up to the standards we impose on others. But, ask jurors if sometimes they have no choice but to back out without being able to see traffic – like we all do when we are at a parking space and an SUV is to our right. Don’t we all think driving is a privilege and we trust that other drivers are driving reasonably. This area of inquiry has not only tested a theme, it’s actually a real world example of a critical jury instruction – CACI 411 – Reliance on Good Conduct of Others. Those jurors who say that it does not matter if the other driving is speeding recklessly, that it’s your fault if you back up and get hit, are obviously not good for your case.
Asking jurors what they love about their life or their work gets them thinking about what it would be like to not be able to do what they love. Ask jurors if at their work safety is put over profits (most jurors will say yes and be able to articulate a number of examples how their employer does the right thing). In a sexual harassment case, talk to jurors about how their company does not just print out thick fancy manuals on the topic, but they actually care and take action to stop work place harassment.
Jurors who ignore the law? They really exist? Of course they do. Most jurors don’t vote what the law is. Rather, they vote based on their own notion of right and wrong. It’s your job to state the law in simple terms so that it fits the lay person’s notion of right and wrong. But, you need to know if the juror is going to ignore a law like that articulated in CACI 411 – Reliance on Good Conduct of Others. Without reading the law to jurors (which some judges may not let you do), state the law in concise real world or straightforward terms and ask jurors what they think about it. For example, the law recognizes that if your neck is broken in a car crash, compensation for your medical bills and lost wages does not make you whole and that the defendant should pay for your human losses (pain, inability to walk, to play with your kids, being trapped at home, being unable to work and pay your bills, being worried about feeding your family, etc.) Jurors that think an injured party should only get their out-of-pocket expenses reimbursed obviously need to be identified and deselected.
Jurors that reject your themes are probably not going to vote in favor of your client. Jurors that are openly or, more frequently, subtly hostile to your client’s case need to be identified and deselected
Too many leaders equals too many different directions. Ask jurors if they have leadership roles at work or in their life. Ask them to explain how, why, where, when they are a leader. If you have 5 different leaders on your panel then you have a recipe for conflict during deliberations. Try to have, at most, 1 or 2 leaders on your jury. Then, arm the leaders (or advocates) with various arguments on why the vote on each question should be in plaintiff’s favor. They will lead the other jurors to the right vote and decision.
While you don’t want to lecture jurors you do want them to understand that the democratic process is the foundation of this country. By acting as a juror, they are serving their country, participating in the best legal system in the world, and a living example of the democratic process. Jurors have enormous power – they can take away freedom, take away life; they can right wrongs, stop widespread corporate wrongdoing, order a defendant to pay millions to an injured party, order a defendant to pay billions in punitive damages, etc. How many times in our lives do we get the opportunity do this – to make a such a huge difference? Amp the jurors up about how cool, fun, and important the trial will be.
Get jurors to commit to following the law, using common sense and keeping an open mind. Use these commitments during closing to remind the jurors that, while they may be confronted by other jurors – or even in their own head – with arguments that ignore the law, that violate common sense and that reflect a bias – they gave their word. Their word is their honor and armed with your closing arguments they will remind themselves and other jurors that they must award general damages, should not discount an award of damages, apply the more likely than not standard, hold defendant accountable to meet its burden of proof, refuse to do something improper, etc.
Challenges for “cause” are based on Code of Civil Procedure §§ 225, 228 or 229 or for an untruthful response to a question during voir dire. (People v. Morris (1991) 53 Cal.3d 152, 279 Cal.Rptr. 720, cert. denied (1991) 502 U.S. 959.) “A ‘for cause’ challenge to a prospective juror should be sustained when the juror’s views would ‘prevent or substantially impair’ the juror’s ability to perform his or her duties in accordance with the instructions and oath.” (People v. Mendoza (2000) 24 Cal.4th 130, 169, 99 Cal.Rptr.2d 485, citations omitted.) There are many treatises that cover when a for-cause challenge can be asserted. Actual bias, implied bias, hostility to a claim, and requiring more proof than the law requires can all be bases for a challenge for cause.
So, if you know (and you do know) when a juror should be challenged for cause, lead that juror to avoid rehabilitation by the court or defense counsel. You know it’s coming, right? You know that the first thing the defense attorney or judge will do is ask Juror #5 “Even though you told plaintiff’s counsel that you don’t believe in awarding anything more than the expense of medical bills, if the judge instructs you that the law requires you to consider awarding general damages, you will do so?” Worse yet, coming from a judge in a black robe sitting above the juror in a position of power, most jurors will simply say yes. So, before you pass, get the juror to admit “So, even if the judge instructs you on the law and how it requires compensation for pain and suffering, you are telling me that you will either not be able to follow the law or you will discount damages because you don’t believe in it, right?” Lead the juror to a record that makes the denial of your challenge for cause an appealable event.
Remember, a prospective juror who admits disqualifying bias may be removed for cause despite the juror’s promise to be “impartial” and to “go according to the evidence.” (See, Lombardi v. California Street Ry. Co. (1899) 124 Cal. 311, 314, 57 P. 66, 68.)
In closing, just remember that we, with jurors, are all part of the same community. George Bernard Shaw said it best: “I am of the opinion that my life belongs to the community, and as long as I live it is my privilege to do for it whatever I can.” Jury service is service for the community.
Arash Homampour is a trial attorney who represents individuals in catastrophic injury/wrongful death matters, employment, and insurance bad-faith cases. In 2016, he was named one of the top 30 Plaintiff attorneys in the State of California and, in 2007, he was named one of the Top 20 Attorneys Under the Age of 40 both by the Los Angeles Daily Journal. Every year since 2004, he has received nominations for Trial Attorney of the Year by the Consumer Attorneys of California and/or the Consumer Attorneys Association of Los Angeles. He was awarded CAALA’s Trial Attorney of the year award for 2009-2010. Learn more about Arash here.
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