I want to share three tips for an effective voir dire and why they
are so important. Then, I will share three sample questions to put these important concepts to work. All this is about dealing with bias against your side in the case.
There are certainly other purposes for voir dire, such as getting to know jurors, introducing key concepts, and establishing rapport. I am focusing on bias because I consider it to be the most important part. The reason I consider it to be the most important is the fact that subtle bias can have a profound, unintentional impact when there are two sides presenting conflicting evidence. If bias creates a negative expectation, you can bet the defense will give that biased juror something to hang their hat on, they will find a way to fulfill that expectation. The defense evidence will have an unfair leg up.
Negative expectations come in many forms. One of the most common examples is suspicion that you or your client will exaggerate the extent of injury to get more money. Another common bias is against motorcycle drivers, where there is a belief most bikers drive like maniacs and assume the risk for doing something so dangerous in the first place. If people with that kind of bias end up on your jury, it will be hard to get full justice. It will take other strong leaders on the juror to overcome the influence of that juror’s bias.
A juror who is skeptical of PI cases and expects some shenanigans from the plaintiff will see a gotcha moment when the defense shows surveillance film or social media posts of your client being active, when in fact the films or pictures are completely consistent with your client’s testimony. An unbiased juror would react, so what, the plaintiff never said she couldn’t smile or go on walks.
When the juror who thinks of motorcycle riders as thrill seeking maniacs hears the defendant say, the plaintiff was trying to slingshot around me, he is likely to give that testimony more weight than the plaintiff, who says the defendant cut him off while he was driving safely within his own lane. An unbiased juror would put all the pieces together and conclude the defendant’s story makes no sense.
Most biased jurors are good people who simply have opinions, feelings or beliefs that would make it hard for them to be completely fair and impartial in your case. The problem is they don’t understand how subtle bias can have a big impact, unintentionally. They think, if you have a good case, their bias won’t matter. The truth is very few can put their bias aside and keep it away, not when there is conflicting evidence and one side’s evidence is aligned with those bias based negative expectations.
Here are the three tips to effectively deal with bias during voir dire:
1. Educate (potential jurors about how bias works)
2. Locate (those on the panel who are biased)
3. Eliminate (biased panelists by establishing challenges for cause)
The first tip, “Educate”, is about using an analogy to give jurors a crash course on how bias works. Once they get it, they are much more likely to admit they can’t be completely fair and impartial. They’ll do their best to put it aside, but cannot assure the court they will be successful.
The second tip, “Locate”, is about asking questions to determine which panelists have a bias against parts of your case. You need to make a list of topics where there may be bias, such as feelings against PI lawsuits, pain and suffering, large verdicts, motorcycle riders, medical practice suits, etc. Then, craft questions designed to find out who has bias against those parts of your case.
The third tip, “Eliminate”, is about establishing grounds to excuse biased jurors for cause. Usually there are not enough peremptory challenges to deal with all the biased panelists. Besides, you are not supposed to have to exhaust peremptory challenges to excuse jurors who can’t be impartial. Peremptory challenges are meant to be used on unbiased jurors to deal with other concerns.
In order to effectively establish cause challenges, you must wrap them in the law of your jurisdiction. Questions need to track language from cases that held the court should have granted a cause challenge when the juror said “x”.
For example, in Florida there is case law that reversed the trial court for denying a cause challenge when the juror said the party would have a strike against them and they could not say with certainty those feelings could be put aside. Two appellate opinions found it to be an abuse of discretion to deny the cause challenge under those circumstances. Other states require the person to say they have a leaning of the mind. Yet others required the person to say they cannot be completely fair and impartial. You must find out what the threshold is to establish cause challenges in your local. Then, design your questions to meet those standards when you locate legitimately biased panelists.
The other key to designing effective cause questions is to seek the path of least resistance. You don’t want jurors to feel they are not fair people or are weak-minded for telling the truth about the impact their bias may have if they were to sit in judgment of this case. That is why I include
the phrase, “in spite of your best efforts to put those feelings aside”. It acknowledges they will try, they aren’t being stubborn. It also heads off efforts to rehabilitate on the grounds the person can put those feelings aside.
Here are samples of how to cover these three essential steps to make sure you have a fair and unbiased trial:
Educate
Again, my name is Keith Mitnik. I’m going to be asking you questions about life experiences, opinions, feelings or beliefs that could impact you if you were to sit on this case. We all have subjects that we have formed opinions or beliefs on. If we were asked to decide who was right in a debate on one of those topics, one side might be at a disadvantage. I call those points of friction. The idea is to find folks who won’t have to struggle with points of friction as to this particular kind of case, or parts of it.
It’s like, if we were having a competition to see who had the best pies and it was down to two pies, one apple the other cherry, and I was randomly picked out of the audience to be the judge. It turns out, I’m not crazy about cherry pie. How many of you think the only right thing for me to do, under those circumstances, would be to reveal that to the contestants and let them decide what to do with it. Do you think the person with the cherry pie would want to know and ought to know that I’m not crazy about cherry pies?
In addition to revealing that I’m not crazy about cherry pie, how many of you think it would also be the right thing for me to be honest with myself and not sugarcoat the potential impact that might have on me, in spite of my best efforts to put those feelings aside? Not that I would take some dried-up, sorry pie that happened have apple filling and a wonderful, succulent pie with cherry filling, and throw the contest just because one pie was cherry filling. I wouldn’t do that. But all else being equal, when I bite into the cherry pie, my lip curls a little. I can’t help it; I’m wired that way. So, does everyone agree that, not only should I reveal the fact that I’m not crazy about cherry pie, but I also should be honest with myself and not sugarcoat the potential impact it may have on me, no matter how hard I try to put it aside?
If I were to say to the contestants, “under the circumstance, I cannot assure you that I can be completely fair and impartial. I’ll do my best, but, in all honesty, it may impact me, because I’ve got a bit of bias against cherry pie”, would any of you think that makes me sound like an unfair person or weak-minded? Would it make sense for me not to judge the pies, but going down the hall and judge the chili, because I pretty much like all of the chili?
Well this case has nothing to do with anything as lighthearted as a pie contest. This is a very serious matter. It is a lawsuit involving a car crash. I need to ask you about experiences, opinions, feeling, or beliefs you have against that kind of case or parts of it, so we can talk about points of friction, like with the pie analogy.
Locate
How many of you have feelings against personal injury lawsuits, based on experiences, things you’ve read or heard, opinions, feelings or beliefs, some level of distrust or dislike, for any reason? How many of you have feelings against personally injury lawsuits?
Do the same for topic son your potential bias list, such as:
Feelings against pain and suffering/ noneconomic damages;
Feelings against large verdicts;
Feelings that someone who chooses to ride on highways exposed on a motorcycle, not wrapped in the protective cage of a car, must be at least partially at fault for their own injuries, even if they did nothing wrong to cause the crash, because they put themselves in danger for riding a motorcycle in the first place?
Eliminate
Go back to the person who sounded the most aggressive in their answers to “locate” questions. Ask that person your cause question first. Here are some sample cause questions.
Would it be fair to say, based on your feelings and beliefs against personally injury lawsuits: - that we may be starting out with a strike against us in spite of your best efforts to put those feelings aside?
- that you would have a leaning of the mind, in spite of your best efforts to put those feelings aside?
- that you could not assure the court you could be completely fair and impartial, you’d try your best, but your beliefs may still impact you.
Once someone models the honest response, ask how many of the rest agree, to any degree. Then, go to all those who raise their hand and ask, “By raising your hand did you mean to say, like Mr. Jones said, you too cannot assure the court you could be completely fair and impartial?
Early on in this process, you should explain to the jurors: When I say “would it be fair to say” or “by raising your hand did you mean to say”, that is my shorthand way to say what I think you are communicating to me. If I get it wrong, please tell me. I don’t want to put words in your mouth. I can do it the longer way, which is to ask what did you mean when you raised your hand, then ask you to tell me some more. Frankly, I’d rather do it that way. But it takes a lot longer and I have quite a few topics like this to cover and there are a lot of you to talk to. So, I do it this way to keep things moving. Is that alright with you? Okay, just keep in mind, if I say something back to you that I think you meant to communicate, but I’m off the mark, will you tell me? It’s important that we have clear communications and a clear record. Thanks. Is everyone okay with that?