The Hidden Jury: And Other Secret Tactics Lawyers Use to Win

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There are also times that the Court has made clear that it does not favor use of a questionnaire and you feel the risks of displeasing the judge are greater than the potential benefits of a questionnaire. A great deal depends on the design of the questionnaire agreed upon by both parties or adopted by the Court. However, because the battle in jury selection is over the middle, using a well-crafted jury questionnaire is almost always to your advantage in jury selection. Some of the advantages of a questionnaire include:. Using a questionnaire also, in our experience, helps you make better decisions about alternates.

Our research shows that alternates tend to be more biased against the defense because they are questioned more hastily and selection decisions are made with inadequate information. Questions used on a questionnaire should be phrased differently than questions asked in open court.

You can also probe many areas in the more distanced, private form of a written questionnaire than you can in open court. We typically use four categories of response with attitude statements: strongly agree, somewhat agree, somewhat disagree and strongly disagree. These questions will elicit more useful responses if you force jurors into one of these four categories. Also, use the questionnaire to ask more personal kinds of questions about experiences or feelings that you might not want to ask about in open court. For example, in many cases, you will want to ask such questions as whether the juror recently lost a loved one, has ever witnessed a serious accident, or has lost a loved one to cancer.

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In voir dire as well, you should not be coy about damages issues. Ask direct and pointed questions to identify those pre-disposed to award money. However, you should phrase your questions differently.

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Jurors are more reluctant to express themselves in a group and in the court setting, so set as low a bar as possible in your questions. Similarly, you can effectively use scaled answers in open court voir dire, just like you do in a written questionnaire, if you learn to adapt your scale to your oral presentation.

Once you have identified the subgroup of those who have negative opinions about your client, you can then eliminate those with the more moderate views and figure out your high priority cause targets or strike candidates. When you ask about damages issues, set the stage by saying that there is nothing wrong with wanting to award money. In fact, that is what our civil system allows for those who are damage.

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If you are successful in getting a juror to admit to high damage tendencies, thank the juror and praise the juror for his or her honesty. Any good plaintiff lawyer worth his or her salt will include many questions about damages on a questionnaire and spend a great deal of time in voir dire asking jurors their feelings about specific types of damage awards, such as awards for pain and suffering or punitive damages. Naturally, plaintiffs probe on those areas that reveal their strikes and conceal their keeps. To help flush out high damages jurors, you will need to ask questions that address your own defense concerns, such as those recommended above.

Our research has shown that there are two simple and effective questions that can flush out high damages jurors. Both are standard questions on the California civil juror questionnaire and are questions we have used or seen others use in state and Federal courts all over the country.

They can also easily be adapted for in court voir dire, although you should not expect to get the same results when asking these questions in open court. Data we have collected over the past fifteen years shows that answers to these questions have been fairly stable, with a large majority of jurors answering too high to both questions. Results from recent large-scale community surveys in Dallas, Texas and Alameda County, California are shown below.

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Why are these questions good defense questions? A good question is not just one that shows a statistical relationship to how jurors vote on your case outcome or on damages. A good question also has a typical distribution of answers that reveals your strikes but hides your keeps. Another way of saying this is a good question is skewed in your favor. If you plotted the above data on a line graph, you could see that the line defined by the data is in fact skewed—it would cut sharply from top left down to the bottom right, rather than being a straight line or a bell-shaped curve.

The key is to phrase your question so that only people with extreme views against you are likely to choose one of the answers, leaving the majority of jurors, including your good defense jurors, hidden in the pack. As we discussed earlier, the emotional hot button for plaintiffs is damage attitudes. It is important for the defense to counter some of the strong themes and anchors plaintiffs give in voir dire by probing on damages questions as well.

However, the defense is not likely to win many cause challenges by probing on damage attitudes. One emotional hot button for the defense is anti-corporate attitudes. Another is sympathy for the plaintiff. Those are the areas that typically present your best chance at eliciting grounds for cause challenges and identifying high damages jurors. Some states, like Texas, West Virginia and Florida, have rules that dictate dismissing for cause jurors who clearly express bias or prejudice. However, in most states, achieving successful cause challenges is not so easy.

In Federal court, of course, it is even more difficult since most Federal judges allow only very limited attorney voir dire. Judges typically do not like to grant cause challenges, often because they are afraid they may have to call up additional jurors or extend the voir dire period beyond what they had planned.

However, an experienced trial attorney knows how to achieve cause challenges and is willing to go the extra distance to obtain such a challenge. The motivation and ability of attorneys to achieve cause challenges vary widely, but these are skills that you can develop and improve through study and practice. Jurors who admit to bias usually will only do it if they are speaking with someone who appears to be open to them and is actively listening to what they say. Bias is almost never admitted under conditions approximating cross-examination.

Jurors, like witnesses, feel trapped and assaulted by a barrage of close-ended questions that offer them no room to explain. You should be conversational, establishing a dialogue with the group. Encourage the jurors to ask questions and to raise doubts. This empathic demeanor is highly effective at getting jurors to confirm their prejudices. Another simple strategy is to talk slowly with the juror and to use pauses to create pressure. Using silence gives time for jurors who feel doubts or are conflicted to feel their own discomfort or uncertainty, increasing the chances that you will get them to acknowledge their predisposition or bias.

Many times, jurors are not fully aware of their own conflicts or biases. Using silence also creates social pressure, as other jurors, who have already heard everything that has been said, are watching and waiting. Lawyers are in general a rational, analytical, text oriented bunch. Most jurors are not. Most jurors will not be responsive to questions about what they think about case-related issues, what they remember from what they read in the paper or saw on TV, or what their opinions are about contemporary issues.

If you are one of those rational, analytical types, you need to take a deep breath and shift personas. Eliciting strong juror emotion is one good route to a cause challenge. In smaller communities, where the dense nexus of social relationships ensures that many people in the pool will have some kind of relationship with the plaintiffs, try to evoke in the juror what it would actually feel like to sit in judgment on a case involving their neighbors, fellow church members, or old family friends.

Would that be difficult for you? Interestingly, we have found that it is easier to get challenges granted for feelings of sympathy or compassion rather than for feelings of anger or hostility. Judges appear more understanding and less aggressive about rehabilitating a juror who feels sorry for a victim than for a juror who simply dislikes product manufacturers. In cases where sympathy will be an issue, this is often the more fertile area of voir dire for cause challenges. If you feel you must use the fairness language, do so in a way that does not pose the issue in such stark black or white terms.

Martinez, are you honestly telling that someone like yourself, who had a parent die of cancer due to toxic exposure, would not have a more difficult time being fair in this case than someone who does not have your experience? For example:. You also said that manufacturers do not care about product safety. Since prospective jurors will seldom say that they cannot be fair, the most effective approach an attorney can use is to provide a socially acceptable way to talk about bias.

Generally, after the grounds for bias have been established, the strategy is to use some type of metaphor to probe further. Examples include:. After they have agreed with the metaphor, you should then raise the level of commitment and suggest that the juror might have a more difficult time being fair.


Because jurors are reluctant to admit to themselves and others that they cannot be fair, they often resist admitting that they are biased even when their own answers clearly indicate that they are. I recently saw an excellent example of how persistence can pay off at a trial in Dallas. The defense attorney, a seasoned trial attorney with strong voir dire skills, was questioning a somewhat soft, feminine woman in her mids.

This woman had a father-in-law involved in a lawsuit against some of the same defendants as in our case. Yet she had said that she could be fair to the plaintiff attorney. Some attorneys would be afraid of pushing too hard, afraid of seeming to bully the woman. This attorney pushed ahead, though, and the exchange went something like this:. Once you have completed jury selection, you can still do a number of things during trial to minimize the chances of a high damages award if you understand the dynamics of juror decision-making about damages.

Obviously, in many cases, juror sympathy for the plaintiff is one of the biggest potential fuels for large damage awards. In cases where sympathy is a factor, you should begin dealing with this issue in voir dire. Lay the groundwork then for a consistent campaign to instruct jurors that the law says they must set sympathy aside in their decision-making. Then, acknowledge that it is natural to have sympathy.

Next, diminish the impact of that sympathy by explaining that while sympathy is natural, the job of a jury is to examine the facts and to make a reasoned award of damages based on the evidence and the law, not on emotion. In closing, remind jurors about the need to set aside sympathy. Make sure that the jury instructions contain good language about this as well and refer to that language.

If you consistently educate jurors about the need to set sympathy aside, our experience and research show that sympathetic reactions do not always lead to larger verdicts.

An obvious question arises: If most jurors believe that there are too many lawsuits and damage awards are too high—as our data and that of others shows—why are there so many large jury verdicts? Recently, research to better understand how jurors arrive at damages decisions was conducted on mock juries, involving over subjects. They found that when juries deliberate on damages, the damage awards typically increased as a result of deliberations. Why are jury awards more than individual awards?

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There is a rhetorical advantage in jury deliberations for those who argue for more money rather than less money. Surveys of the mock jurors show that most people feel it is a hurdle to argue for less money than for more. Because of the severity shift, it is essential for the defense to give reasonable defense damages anchors to jurors.

The Hidden Jury: And Other Secret Tactics Lawyers Use to Win The Hidden Jury: And Other Secret Tactics Lawyers Use to Win
The Hidden Jury: And Other Secret Tactics Lawyers Use to Win The Hidden Jury: And Other Secret Tactics Lawyers Use to Win
The Hidden Jury: And Other Secret Tactics Lawyers Use to Win The Hidden Jury: And Other Secret Tactics Lawyers Use to Win
The Hidden Jury: And Other Secret Tactics Lawyers Use to Win The Hidden Jury: And Other Secret Tactics Lawyers Use to Win
The Hidden Jury: And Other Secret Tactics Lawyers Use to Win The Hidden Jury: And Other Secret Tactics Lawyers Use to Win
The Hidden Jury: And Other Secret Tactics Lawyers Use to Win The Hidden Jury: And Other Secret Tactics Lawyers Use to Win
The Hidden Jury: And Other Secret Tactics Lawyers Use to Win The Hidden Jury: And Other Secret Tactics Lawyers Use to Win
The Hidden Jury: And Other Secret Tactics Lawyers Use to Win The Hidden Jury: And Other Secret Tactics Lawyers Use to Win

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