Relying on stereotypes or hunches in the jury selection process all too often leads to problems at trial; jury research takes the guesswork out of this complex process and creates the results trial teams want.
This article will discuss how the jury selection process works in many venues, the different methods judges employ during jury selection and some key questions each trial team should ask the court before engaging in jury selection in a case. As we all know, the lawyers don’t get to select which jurors they want from the larger panel that comes to court that day—the process centers around striking jurors you don’t want. The key to the jury selection process is de–selecting the right jurors to ultimately create a panel that will be receptive to your case.
Most litigators will tell you that jury selection is the part of the case that the lawyers feel they have the least amount of control over, and to some degree they are correct. If the trial team does not have pre–trial intelligence (jury research) on the types of jurors that are most or least receptive to their case, then the trial team is left with guesswork and stereotypes in selecting the jury. Those tools (guesswork and stereotypes) are not effective in the jury selection process and have produced in many trials detrimental effects for uninformed trial teams—stacking the jury against their case before the trial even starts.
How to Bring a Level of Control to Jury Selection
The trial team can bring a significant level of control over the seemingly random process of jury selection by engaging in pre–trial jury research that develops a sound profile of the types of jurors for and against the case. A solid juror profile of the types of jurors you want to keep and exclude should include attitudes, experiences and, to some degree, demographics. Attitudes and experiences are extremely rich in predicting a person’s behavior, while demographics alone are typically poor predictors of a person’s behavior. Demographics can be useful when an experience or attitude within a demographic group drives predictive behaviors. Developing a strong profile allows the trial team to engage in jury selection with a substantial advantage over the other side, by making knowledgeable strikes based on the jury research profile as opposed to educated guesses based on stereotypes.
Stereotypes vs. Jury Research Profiles
A great example of how stereotypes can lead a trial team astray is a case I was involved in several years ago in Arizona. We were retained by a billionaire client who was on the plaintiff side of the case; he was suing a prominent political figure for interfering with a business merger. We conducted several phases of jury research and each time women were significantly unwilling to find the defendant liable. The women would hypothesize that it was just big business and tough negotiations. Men, however, were just the opposite—they felt like the defendant gave men in business a bad name and his conduct clearly crossed the line between hardnosed business and unethical business practices.
Looking deeper into the jury research data, we discovered that the women were unwilling to find against the defendant because they believed our client was a billionaire and did not need any more money. The women felt that the defendant’s life and additionally his family’s lives would be financially destroyed, and it was unfair to find the defendant liable just to give more money to a person who already had too much money. Men thought allowing the defendant to get away with his misconduct would be a statement condoning unethical business practices, which to them was an untenable result. So our jury research clearly showed a counterintuitive profile between men and women from an attitudinal basis. Stereotypes typically state that women are more likely to favor the plaintiff and men, especially businessmen, would favor the defense.
Now, let’s fast forward to jury selection. The case was in Arizona so the court used the Arizona blind striking method, where each side would not know what jurors the other side was striking. The defense used stereotypes and believed that women would be bad for their case, thinking that they would be more sympathetic to the plaintiff’s case (classic stereotype). So the defense thought it wanted men and should strike women, which was a misguided strategy. Our side knew we did not want women because of the jury research that demonstrated over and over again that this plaintiff case was best suited for men, specifically businessmen, so our side was striking women.
The selection results were shocking, and shockingly good for our client. The court called out the jurors and the result was a jury of seven men and one woman, a stacked jury for our client. The verdict was one of the largest verdicts in Arizona, to the tune of $60 million. When speaking with the jurors after the verdict, the men stated that they let the “little lady” be the foreperson since she was the only woman. When we spoke to her, she stated that all the men wanted to find for the plaintiff and they were very angry with the defendant. She expressed that she successfully talked the men down off a $100 million damage award, which is what the men wanted to award! Her behavior was consistent with our jury research and validated, once again the validity and reliability of our research methodology. This case is a great example of counterintuitive profiles that demonstrate the error in using stereotypes to profile jurors and the clear advantage gained to our client with the intelligence the jury research provided to the trial team.
Different Jury Selection Procedures
Every judge has his or her own method in jury selection; some are more complicated and rigorous than others. Understanding the court’s procedure is critical in strategically implementing your strikes and avoiding an unexpected situation. Failing to completely understand the court’s process can leave you at a distinct disadvantage. I once saw the plaintiff in a complex litigation case stand and tell the court that they “accepted the jury panel as constituted,” even though they had two strikes left. I was working for the defense and we continued to strike the panel. The plaintiff then tried to strike again and our side objected, stating that the other side had accepted the panel and we were merely trimming down from the already accepted panel by the plaintiff. The court agreed that the plaintiff had waived its rights to use any more strikes during the selection. What the plaintiff lawyer likely wanted to say was that he passed, but he did not use those exact words. This is just one example of some of the pitfalls that can occur if you don’t completely understand the court’s procedures.
What Is the Court’s Striking Procedure?
It is also important to understand whether the striking is going to happen blind or alternating and whether the strikes will be in open court or during a break.
If the court is going to use a striking method that is blind, it is important to understand the court’s procedure if there is a double strike. Will the court determine who gave the double strike and allow an additional strike to the party that is determined to have used a strike on a juror that was already struck or does the court simply have the double strike used as a challenge from both sides? I have seen it done both ways.
The alternating striking procedure is where the clerk passes the strike board back and forth between the parties so each side sees what challenge the other side has just administered. This process provides information to each party on the types of jurors each side is striking. In this type of procedure the team should order their strikes in a strategic manner. You can obtain an advantage by leaving a potential juror that you don’t like on the panel initially if you believe the other side might strike that juror. We call this counter-striking and it allows you to basically use the other side’s strikes to remove unwanted jurors.
Passing during jury selection means that when it is your turn to use a strike you elect not to strike a juror. This can be implemented because you like all the jurors in the range of the jury. If the other side also passes you will have accepted that set of jurors for your case. However, you can also obtain a strategic advantage by implementing a pass during jury selection, but you need to know how the court interprets a pass during the striking procedure. I have seen several outcomes from a use of a pass during selection. One outcome is the court will not allow your side to use any more preemptory challenges; this discourages passing and almost compels the lawyers to want to use all their challenges. Another outcome is the side that passed simply loses the strike and the process continues unless the other side passes as well—in that scenario the selection process is over and the jury is selected. The final outcome I have seen and used effectively is to allow your side to collect strikes and then control the ultimate makeup of the jury once the other side has used all of its strikes.
As an example, I had a case in Florida and my client was a large media company on the defense side of the case. Each side had six challenges, for a total of 12 strikes. During voir dire there were two jurors sitting next to each other that expressed anti–litigation views, but the court refused to remove the jurors for cause. The court required the parties to strike within the universe of the jury, meaning the first six jurors. As the striking process began it became clear to me that if we struck outside the universe we could move those anti–litigation jurors closer to the front and into the box, but it would require our side to pass and then strike outside the universe. I suggested to our lead lawyer to strike outside the universe. He said the court clearly said within the first six jurors but we decided to see what would happen. As it turned out the court allowed us to strike outside the universe of six, though the court commented that it seemed like a wasted strike. The plaintiff side looked puzzled and continued to strike inside the universe of six, we continued to strike outside the universe of six. Then we passed, and passed again, each time the plaintiff striking away at the top six. Finally, the plaintiff was out of strikes, but we had three left. We used those last three to move those anti–litigation jurors into the universe of six.
Key Questions that Should Be Asked Prior to Jury Selection
Here are just some of the questions that the trial team may want to ask the court to have a clearer understanding about the court’s jury selection procedure and will limit the number of surprises that could occur during the process.
- What is the process that the court will employ?
- Will the court provide juror questionnaires?
- What information will the trial team have from the court about each juror?
- During selection will there be a universe to strike from?
- If you pass do you get to keep the strike?
- If you pass can you back–strike?
- Will the preemptory challenges happen in open court or at side bar or during a break?
- Will the striking be done blind or alternating?
- Will the lawyers conduct any live voir dire? If so, how much time?
Taking Control of Your Case
The Litigation Group consultants are experts in jury communication, jury research, witness preparation and jury selection. We have more than 30 years of experience and have worked in all types of venues across the country. We have seen all types of selection methods from the standard”Six Pack” panel, the “Arizona Blind Strike,” to the “Bingo Blackout” approach. I welcome the opportunity to talk with litigation teams about the best methods to analyze jurors’ attitudes and experiences before a case goes to trial. The results are clear—understanding the intricacies of juror de–selection and how to optimize a panel of jurors receptive to your arguments will lead to victories.
By Mark T. Gerard, M.A.
President, The Litigation Group