By Thomas M. O’Toole, Ph.D.
I am writing this week’s blog post on a plane ride back from the east coast where I just finished picking a jury in Delaware. The jury selection experience there was deeply disturbing. I would normally write the experience off to the random “crazy” judge that I stumble across every once in a while, but this experience is becoming more and more common and has particularly taken hold in the Northeast. It turns out these judges are not in fact “crazy,” but instead, taking extraordinary steps in response to poor attorney tactics during jury selection.
Let me start by outlining the jury selection process I experienced in Delaware. We picked the jury on the Wednesday before trial. The actual trial did not start until the following Monday. There were a couple of pre-trial items to take up with the court, but they were minor (they took about 15 minutes to resolve). Consequently, we had the entire day set aside for jury selection. The judge did not allow any attorney-conducted voir dire (unfortunately, this is common on the east coast). Instead, she allowed counsel for both sides to submit a few questions in advance for the judge to ask. The size of the venire was about 60-70 people. We received a list of all of the people called for jury duty on that day a few days earlier. The list was not only the people called for our trial, but every one else. It consisted of 400 potential jurors.
I am not sure why the court provided the list in advance, but I suspect it has something to do with providing the attorneys the opportunity to “research” all of the potential jurors in advance. A lot of attorneys love the idea of being able to research potential jurors in advance of trial. However, this research falls in the world of “interesting, but irrelevant,” at least in the civil context. I have been selecting juries for about 10 years now, and I have never uncovered meaningful information about a potential juror through a Google or similar search in the dozens of jury selections I have been involved with and the thousands of potential jurors I have researched. Instead, I have uncovered interesting facts, such as the fact that one juror might be a Democrat. In this recent case, I learned that a few jurors were devout Catholics, a handful were successful high school athletes, one was on America’s Next Top Model, and few other random bits. I do not mean to suggest that you will never find something meaningful, as I suspect there is a reader or two out there who has had a contradictory experience, but the likelihood is very low.
Some attorneys might find this information very useful. I can imagine war room discussions about why Catholics might be good or bad for a defendant in an employment case, but the reality is that this information provides no insights into whether or not a potential juror possesses a bias that makes it difficult for my client to receive a fair trial. Sure, we can make guesses about how a Catholic might feel about an employment case, but those guesses are as unreliable as it gets.
Back to my jury selection experience, we received the actual venire list for our case minutes before jury selection began. We also received updated short-forms for the venire. These forms consisted of very limited information about the jurors. It included their name, age, race, employer, occupation, and prior jury experience. It also asked whether or not they have ever worked for law enforcement or an insurance company.
The judge waited until all of the potential jurors were in the courtroom before coming out. She immediately jumped into her voir dire, but went about it in a very odd way. She quickly read off all nine questions and then told the venire that anyone who answered “yes” to any question should get in line to talk to her at sidebar. I am not entirely sure the venire caught all of the rapid-fire questions. The attorneys and myself were invited up the sidebar. The judge did all of the talking with very limited follow-up by the attorneys.
Once the sidebars were finished, the judge announced it was time for the attorneys to exercise their strikes. We had almost no meaningful information to draw on. Even worse, the judge randomly replaced the struck jurors. Consequently, we had no way of knowing who would step into the box if we exercised a strike.
You might be thinking that this is an extraordinarily unusual situation, but I have now experienced this same process several times (in different venues) on the east coast. On the west coast, I have run into judges who allowed extremely limited voir dire time (10 minutes per attorney) and rationalized it by suggesting that attorneys tend to be wasteful with voir dire time anyway. In Washington State, a Supreme Court Justice recently suggested that Washington courts should do away with peremptory strikes, basing the suggestion on the argument that attorneys are not using them the way that they should.
All of this makes a lot of sense and absolutely no sense at the same time. The reality is that judges are reasonably frustrated, but are relying on unreasonable solutions. Attorneys’ voir dire strategies are the real problem. Attorneys need to develop better voir dire strategies that show the court that they know what they are doing and are being efficient and respectful of the court and jurors’ time. The failure to accomplish this impacts everyone. It leads to fed up judges instituting changes that make jury selection more difficult, if not impossible.
The most common waste of voir dire time is selling the case in voir dire. This is the idea that the attorney can somehow get an edge by using voir dire time to start selling his or her case to jurors. It is likely based on some variation of primacy theory, which seems to be very popular with attorneys. But there are numerous problems with this strategy. First, there is zero research supporting a primacy effect in voir dire. In fact, all of the primacy research (that relates to litigation) shows that primacy effects occur in opening statement. This makes sense. Jurors simply do not have the context in voir dire and are so overwhelmed by the sudden introduction to the process that the likelihood of being persuaded in voir dire is extremely low. Furthermore, think about it. The juror who forms an opinion in voir dire based on some random comment by the attorney is a juror who has such low cognitive complexity that they are probably going to change their mind several times over the course of trial.
From a practical standpoint, selling your case in voir dire is a counter-productive strategy. The more you persuade jurors and get them agreeing to your theory of the case, the more work you are doing for the other side. In other words, what you are actually doing is flagging the other sides’ bad jurors and helping them understand who they should strike. When you get jurors agreeing with your themes, they start nodding or they provide verbal confirmation, which shows the other side who they should strike.
Finally, negative attitudes are much more predictive of positive attitudes. Agreement is less predictive than disagreement. Attorneys who base their voir dire strategies on perceptions of who agrees with them or who is “good for them” are making dangerous decisions. Negative attitudes, such as disagreement, are so much more predictive of human behavior than positive attitudes. If you need any proof, read the comments section of any newspaper’s website. No one ever posts about how great the article was. It is always negative and critical comments because this is what motivates people to act. Consequently, selling your case does not actually give you reliable insights.
No matter how many times jury consultants write about or tell attorneys not to waste valuable voir dire time trying to “sell their case,” the practice continues. Sadly, there are also jury consultants out there who, for some unfathomable reason, actually advocate this practice. Frankly, I never cared if other attorneys engaged in this practice. If they are on the other side, it only helps my client. If I am not working with them, why should I care?
Now I know why I should care. We are quickly reaching a point where change is desperately needed. More and more judges are restricting voir dire time or eliminating it all together. This has a disastrous impact on our system. It eliminates a critical step in the process of determining whether or not a party can receive a fair trial. Judge-conducted voir dire is often very limited, particularly to questions such as knowledge of the case or parties, but the world of meaningful bias does not stop there, which means there is a substantial risk that biased jurors are making it onto juries. Change is desperately needed, both with judges and attorneys, but it begins with the attorneys. Attorneys need to stop providing judges with justification to limit or eliminate voir dire. Attorneys need to learn to use voir dire more effectively moving forward.